Davis v. State

Madsen, J.

(concurring) — The majority uses the definition of “artificial” adopted in Ravenscroft v. Washington Water Power Co., 136 Wn.2d 911, 969 P.2d 75 (1998) for determining whether a condition is “artificial” for purposes of the recreational use statute, RCW 4.24.210. The majority then distinguishes Ravenscroft, adding a gloss that does not appear in that case, i.e., the inquiry of how close the *620relationship is between an “artificial external circumstance” and the immediate condition causing the injury. Majority at 618. Of course, this qualification is needed to avoid the unreasonable result that would otherwise follow in this case. The majority’s struggle with Ravenscroft bears out the prediction in my dissent in Ravenscroft that the decision would provide no clear guidance for determining whether a condition is “artificial.” Ravenscroft, 136 Wn.2d at 932, 936 (Madsen, J., dissenting).

I recognize that given the flawed analysis in Ravenscroft, the majority has arrived at the best solution it can short of overruling the case. I believe the better course is to accept that Ravenscroft contains a flawed analysis, and that it will be necessary to distinguish it far more often than apply it in order to carry out the purpose of the recreational use statute. The court should abandon Ravenscroft altogether and apply a clear, narrower definition of “artificial condition.” As I proposed in my dissent in Ravenscroft, this court should confine the definition of “artificial” for purposes of the statute to conditions which are actually man-made and not occurring in nature. The inquiry should also focus first on what actually constitutes the injury causing condition, rather than on all surrounding conditions.

This approach better serves the purpose of the recreational use statute. The aim of the recreational use statute is to encourage those in possession or control of land and water areas to make them available for recreational use by the public, and to protect the owners of recreational use property from liability. RCW 4.24.200. That purpose is thwarted when the meaning of “artificial condition” includes any man-made change in a recreational use area, or any “condition contrived through human effort.” Ravenscroft, 136 Wn.2d at 933 (Madsen, J., dissenting).

Here, the sand dune drop-off was the injury causing condition. The clear answer to the question of “artificiality” in this case is that the sand dune drop-off was in its naturally occurring state. Sand dunes naturally shift, and those along the Columbia River are subject to considerable *621wind that causes shifting. As a matter of law, the injury causing condition was not artificial, as the majority concludes.

The fact that tracks were left by other users does not alter that conclusion. First, the mere use of the property as recreational property should not create the “artificiality’ giving rise to liability. Otherwise, any alteration in the natural state brought about by recreational use could lead to liability despite the purpose of the statute to encourage opening up lands and waters for recreational use. If the use itself can create the artificial condition, and thus expose the owner to liability, a disincentive, rather than an incentive, to open up lands and waters results. Second, the tracks of other users were not, as the Court of Appeals observed, a purposeful effort to alter the nature of the sand dunes, and indeed, they did not create or alter the drop-off at all. Finally, the tracks were not the injury causing condition, nor should they be viewed as a component of it. The drop-off was the injury causing condition.

This court should acknowledge that the approach followed in Ravenscroft is unworkable and inconsistent with the purpose of the recreational use statute. Rather than try to work within its flawed framework, adding additional analytical specifications where needed in order to distinguish it, the court should expressly disapprove its analysis.

I concur in the result reached by the majority.