From the desk of Kyle Riley: Generally, a landowner has a common law duty to public invitees to protect them from unreasonable risks of harm. When the property is open to the public for “recreational purposes,” a Washington statute provides immunity for certain claims. However, the statute is interpreted narrowly.
Claims Pointer: A landowner may assert the recreational use immunity defense only if they have the authority to “close” their property to recreational use and recreational use may not be a mere incidental use of the land.
Camicia v. Howard S. Wright Const. Co., 85583-8, 2014 WL 333159 (Wash. Jan. 30, 2014)
Plaintiff, Susan Camicia, became paralyzed as a result of injuries she sustained when she was thrown from her bicycle after colliding with a wooden post on a portion of the Interstate I–90 bicycle trail located in the city of Mercer Island. To prevent motor vehicles from entering the asphalt trail, the state had installed wooden posts at some locations where the trail intersects with city streets. At the time of Camicia’s accident, Howard S. Wright Construction Company was retained as the general contractor for a construction project. To prevent public access during construction, the contractor installed a chain link fence around the perimeter of the site. Some of the fence footings at this site protruded onto the I–90 bicycle trail. Camicia was bicycling along the I–90 trail. She approached an intersection, and veered left to avoid the fence footing to her right. She could not avoid the post and suffered injuries after being thrown from her bicycle.
Camicia brought suit against the City and the construction company in King County Superior Court. The City moved for summary judgment, asserting immunity under Washington’s recreational use immunity statute, RCW 4.24.210. Under this statute, “public or private landowners or others in lawful possession and control of any lands” who allow the public “to use them for the purposes of outdoor recreation,” without charging a fee, are immune from liability for unintentional injuries to such users. RCW 4.24.210(1). The trial court granted the motion for summary judgment and Camicia appealed. The Court of Appeals reversed and remanded, finding there was an issue of material fact as to whether the trail served a recreational purpose as opposed to a transportation purpose. The City appealed to the Washington Supreme Court, which affirmed the ruling of the Court of Appeals.
The recreational use immunity statute creates an exception to Washington’s premises liability laws. In order to be immune under RCW 4.24.210(1) the landowner must establish that the land in question (1) was open to members of the public (2) for recreational purposes and that (3) no fee of any kind was charged.
On appeal, Camicia argued immunity does not apply because the City failed to show that (1) it owned the trail; (2) it had the legal authority to open or close its portion of the trail; and (3) immunity otherwise applied to the trail, which Camicia characterized as a “regional public transportation route.” Because recreational use immunity is an affirmative defense, the City had the burden of proving entitlement to immunity under the statute.
The Court stated that a landowner must have authority to close the land to the recreating public because extending recreational immunity to landowners who lack authority to close the land to the public “would not further the purpose behind the act,” namely to encourage landowners to open land that would otherwise be closed to the public The Court determined that there was a material question of fact about the City’s authority to close the land to the public, as the deed granting the land limited the use to “road/street purposes only.” The Court also rejected the City’s argument to extend the reach of recreational immunity to land that is open for more than recreational use, as this would unjustly relieve the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel. The Court further stated that where the land at issue is shown to be recreational, immunity does not depend on whether the plaintiff was actually engaged in recreation at the time of injury. Because the City failed to meet its burden that the trail was open to the public for outdoor recreation, as opposed to being open for transportation purposes, the Court affirmed the Court of Appeals reversal of summary judgment.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.