IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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Respondent. FILED: October 12, 2015
Becker, J. — Elizabeth Olson appeals the order granting summary
judgment in favor of the Tukwila School District and dismissing her premises
liability action. Because the District has immunity under the recreational use
immunity statute, we affirm.
This case arises from an injury that Olson incurred while at the athletic
facility at Foster High School, a public high school in the Tukwila School District.
Foster High School's athletic facility includes a running track. One day in April
2012, Olson visited Foster High School to use the running track as she had done
on many occasions in the past. To get to the track, she took a different route
than on prior occasions, one that required her to step down from the bleachers
onto the track. Olson did not accurately perceive the rise that separated the
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bleachers from the track surface. As she took the step, she fell and injured her
ankle.
Olson sued the District. The District moved for summary judgment. The
trial court granted the motion based on RCW 4.24.200-.210, the recreational use
immunity statute. This appeal followed.
We review a grant of summary judgment de novo, performing the same
inquiry as the trial court. Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780,
787, 108 P3d 1220 (2005). Summary judgment is appropriate only when there
are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c). When the facts are undisputed,
immunity is a question of law for the court. Camicia v. Howard S. Wright Const.
Co.. 179 Wn.2d 684, 693, 317 P.3d 987 (2014).
Washington's recreational use immunity statute, RCW 4.24.210, defines
circumstances under which a landowner is immune from suit for unintentional
injuries to users:
Except as otherwise provided in subsection (3) or (4) of this
section, any 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 . . . without
charging a fee of any kind therefor, shall not be liable for
unintentional injuries to such users.
RCW 4.24.210(1).
To be immune, the landowner must establish that the use (1) was open to
members of the public (2) for recreational purposes and that (3) no fee of any
kind was charged. Because recreational use immunity is an affirmative defense,
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the landowner has the burden of proving it applies. Cregan v. Fourth Mem'l
Church, 175 Wn.2d 279, 283-84, 285 P.3d 860 (2012).
USE BY "MEMBERS OF THE PUBLIC"
Olson does not dispute that use of the track is a recreational activity. She
does dispute whether the use was open to members of the public. On that issue,
Cregan is instructive. There, the Supreme Court defined "public" as "'[ojpen or
available for all to use, share, or enjoy.'" Cregan, 175 Wn.2d at 285 (alteration in
original), quoting Black's Law Dictionary 1348 (9th ed. 2009). The court also
explained that depending on the specific facts at hand, landowners may restrict
some access and still qualify for recreational use immunity. For example, a
landowner that permits the public to hike or picnic may prohibit the public from
hunting on its land. A landowner may allow public access only during
nonbusiness times. A restriction that allows minor children on the land only if
accompanied by an adult may also be appropriate. In such cases, the land is still
held open to the public. Cregan, 175 Wn.2d at 285-86.
But the land is no longer open to the public if the landowner restricts
access by discriminating against the user based on personal traits. In Cregan.
the landowner did not qualify for recreational immunity because the invitation to
enter the land depended on the user's religious affiliation. "When an owner
excludes people in this way—that is, has a selective invitation to enter the land—
the land is no longer open to the public, that is, for all to use or enjoy." Cregan,
175Wn.2dat286.
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The Tukwila School District limits the invitation to use the track in a
number of ways that clearly pass muster under Cregan. For example, the track
is open to the public only before and after school hours. One posted sign
excludes weapons, drugs, alcohol, tobacco, motorized and wheeled vehicles,
skateboarding, loitering, and criminal trespass. Another sign, while stating that
wheelchairs are allowed, disallows pets (other than service animals), cleated
shoes, and food and drink other than water. These restrictions do not, under
Cregan, transform the facility into one that is not open to the public.
The closer question is a restriction limiting public use of the track to
"Tukwila citizens" who have obtained an access card at the school district office.
The facility's main entrance gate has an access card reader. One posted
sign limits access to "Authorized Card Holders Only," and another sign states
that "Tukwila citizens" may obtain an access card. Olson contends that by
reserving the right to deny access to Tukwila citizens, the District has issued a
selective invitation.
There is no evidence in the record that the policy restricting use of the
track to cardholders is based on a personal trait. Everyone in the Tukwila
community had the same opportunity to obtain an access card. A District
employee testified in a deposition that to obtain an access card, Tukwila citizens
have to provide identification and complete a two-page application. Access cards
are issued the same day. The employee testified that in her 12 years working for
the District, she has never denied an application.
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While it is possible to imagine circumstances under which it might be
considered discriminatory to restrict use on the basis of where the user lives,
based on the specific facts of this case, a reasonable trier of fact could only
conclude that the facility was open to members of the public.
A FEE OF ANY KIND
The other disputed element of recreational use immunity is whether the
District allowed public use without charging "a fee of any kind therefor." The
District did not charge Olson a fee to use the running track. Access cards were
free of charge. The District did, however, occasionally charge fees for
organizations and groups to use all aspects of the athletic facilities, including the
track, artificial turf, announcer, control booth, custodian, field supervisor, police
security, and scoreboard. For use of the track only, the District has charged fees
on seven occasions in the past five years.
Olson contends that the charging of fees in these instances precludes
immunity. She argues that the District is not immune if any fee was ever charged
for use of the athletic facility. She relies on a case from the Oregon State
Supreme Court, Coleman v. Oregon Parks & Recreation Department. 347 Or. 94,
217 P3d 651 (2009). In that case, the plaintiff paid a fee for a campsite in a park.
While in the park, he was injured on a bike trail where the public was free to ride.
Oregon's immunity statute applied only if the landowner "makes no charge for
permission to use the land." Former ORS 105.688(2)(a) (2001). The Supreme
Court of Oregon denied immunity to the parks department because of the charge
to use a campsite. Under Coleman, the landowner is entitled to immunity only if
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there is no charge for using any part of the land. It makes no difference if the
injured person was engaged at the time of the injury in a use for which no fee
was charged. Coleman, 347 Or. at 102-03.
In Washington, on the other hand, a landowner can charge a fee for public
use of a portion of its recreational land without necessarily losing immunity for
public use of the remainder. Piano v. City of Renton. 103 Wn. App. 910,914-15,
14 P.3d 871 (2000). The inquiry under our statute is whether landowners allow
members of the public to use their lands for recreational purposes "without
charging a fee of any kind therefor." RCW 4.24.210(1).
In Piano, the plaintiffwas injured when she slipped and fell on a ramp
leading to a moorage dock in a city park. Renton did not charge users a fee to
enter the park or to use most of the park's facilities, but it did charge a fee for
overnight moorage. We identified the issue as whether Renton charged a "fee of
any kind" for use of the land where the injury occurred. The moorage was
available for members of the public to use for purposes of outdoor recreation.
"Under the statute, immunity is available only if Renton does not charge a fee of
any kind for such use." Piano, 103 Wn. App. at 914 (emphasis added). Because
Renton did charge a fee for overnight moorage and the plaintiff was injured while
using the moorage, the city was not entitled to recreational use immunity.
In this case, the use in question is an individual's use of the running track,
not an event that commandeered the entire stadium. Occasionally, fees were
charged for the use of the track alone by organized groups on scheduled dates, a
use that might involve the District in planning, supervision, and cleanup. These
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fees included rental fees, security fees, custodial fees, utility fees, and
administrative fees as would be appropriate. No fee was ever charged to
individual members of the public who made unscheduled use of the running
track. On the specific facts of this case, the District was not liable for
unintentional injuries to "such users" because such use by individual members of
the public was always free.
LATENCY
Landowners who are immune are generally not liable for unintentional
injuries. But an injured party may overcome immunity by showing that the
injuries were sustained "by reason of a known dangerous artificial latent condition
for which warning signs have not been conspicuously posted." RCW
4.24.210(4)(a); Jewels v. City of Bellingham. 183 Wn.2d 388, 390, 353 P3d 204
(2015). An injury-causing condition is "latent" if it is not readily apparent to the
recreational user. The condition itself, not the 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.
This is an objective inquiry. Jewels, 183 Wn.2d at 398.
Olson contends that the condition is latent because the concrete step
where her injury occurred blends into the track, making the danger invisible from
her perspective as someone coming down from the bleachers. She points out
that there were no distinctive markings to call attention to the unexpectedly high
drop-off. She admits that a step was expected but argues that she did not expect
one so high.
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Latency does not depend on the vantage point of the recreational user.
Tennyson v. Plum Creek Timber Co.. 73 Wn. App. 550, 555, 872 P2d 524, review
denied, 124 Wn.2d 1029 (1994). Latency is not 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 specific recreational activity. The
relevant inquiry is whether an ordinary recreational user standing near the injury-
causing condition "could see it by observation, without the need to uncover or
manipulate the surrounding area." Jewels. 183 Wn.2d at 400; see also Van
Pinter v. City of Kennewick, 121 Wn.2d 38, 46, 846 P2d 522 (1993) (when the
condition itself is patent, the statute's requirement of latency is not satisfied by
showing that the danger presented is latent).
There can be no dispute that an ordinary recreational user standing near
the concrete step could see it. Photographs in the record confirm that the
change in elevation between the bleachers and the track field would be obvious
to the ordinary recreational user. See Jewels, 183 Wn.2d at 400. As a matter of
law, the condition was not latent.
The District has met its burden of showing that the recreational use
immunity statute applies. Olson has not presented facts that overcome this
immunity. We need not address the District's alternative argument that summary
judgment is appropriate on the basis that the District did not breach its duty.
Affirmed.
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WE CONCUR:
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