Jewels v. City of Bellingham

Gordon McCloud, J.

¶25 (dissenting) — I agree with much of the majority opinion. I agree that the adjectives in the recreational land use statute (“known,” “dangerous,” “artificial,” and “latent”), RCW 4.24.210, modify the term *402“condition” and not one another. Majority at 391. And I agree with much of what the majority says about the issue of latency.

¶26 I disagree with the majority’s ultimate holding, however, because it depends on a definition of the “general class of recreational users” that is too restrictive. Majority at 398.1 therefore conclude that Steven Jewels has created a genuine issue of material fact as to latency. I also conclude that he has created a genuine issue of material fact as to dangerousness. Accordingly, I would reverse the Court of Appeals.

ANALYSIS

¶27 An injury-causing condition is “latent” for purposes of the recreational use statute if it is “not readily apparent to the recreational user.” Van Dinter v. City of Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993). The majority is correct that this is an objective inquiry; a condition is not latent merely because the plaintiff didn’t see it or failed to appreciate its dangerousness. Id. at 45-46; majority at 398. Instead, as the majority correctly notes, “The dispositive question is whether the condition is readily apparent to the general class of recreational users.” Majority at 398 (emphasis added); Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 924, 969 P.2d 75 (1998).

¶28 The majority, however, uses an overly restrictive definition of the “general class of recreational users.” Majority at 398. The majority limits this class to “ordinary recreational user[s] standing near the injury-causing condition.” Id. at 400 (emphasis added). It thereby excludes bicyclists like Jewels from the class of recreational users whose perspective matters to the latency inquiry.

¶29 In my view, this conflicts with our precedent on the recreational land use statute. In Ravenscroft, the plaintiff was injured while riding in a boat on Long Lake. 136 Wn.2d at 916. The boat struck some submerged tree stumps, and *403the impact caused the motor to flip up into the boat and strike the plaintiff. Id. at 915. This court held that a jury could find the submerged stumps were latent because the evidence showed that (1) the pilot of the plaintiff’s boat failed to see the stumps and (2) other boaters had also hit the stumps. Id. at 925.

¶30 Of significance to this case, the Ravenscroft court did not ask whether the stumps would have been readily apparent to someone swimming near them. Instead, our decision relies on the assumption that the plaintiff — a boater — fell within the general class of Long Lake’s recreational users.7

¶31 Similarly, there can be no question here that Jewels falls within the general class of recreational users who visit Cornwall Park. He was injured while riding a bicycle through the park on the right side of the public road, just as traffic laws dictate he must. See RCW 46.61.770(1) (“Every person operating a bicycle upon a roadway at a rate of speed less than the normal flow of traffic at the particular time and place shall ride as near to the right side of the right through lane as is safe.”). No evidence suggests that he was riding at an unusual speed or in an otherwise unusual manner.

¶32 Because I believe that Jewels falls within the general class of recreational users, I also disagree with the majority’s assertion that Jewels’ perception is “immaterial” to the latency determination. Majority at 400. Contrary to the majority’s implication, Jewels does not argue that the water diverter was latent solely from his unique perspective. See id. (“what a particular recreational user saw, believed, or thought he saw is immaterial”). Instead, he *404argues that the water diverter was latent from the perspective of bicyclists in general.8

¶33 To be sure, Jewels does provide his own declaration that although he looked at the ground where he intended to ride around the second speed bump, that ground appeared to be “bare, flat pavement between the curb and speed bump.” Clerk’s Papers (CP) at 92. But that statement is more than an assertion about what Jewels, in particular, saw. It is also evidence that the unpainted water diverter was not readily apparent to bicyclists in general.

f34 More importantly, Jewels’ statement is supported by the photographs that the city of Bellingham (City) submitted. Despite the City’s characterization of the water diverter as “black” and therefore readily distinguishable from the gray concrete surrounding it, CP at 16-17, the photographs depict the unpainted asphalt as only slightly darker than the surrounding concrete. Based on this objective evidence, a jury could reasonably find that the asphalt water diverter (and thus its proximity to the curb cutout) was not “readily apparent” to the average recreational bicyclist. Van Dinter, 121 Wn.2d at 45.9

*405¶35 For those reasons, I would hold that the City is not entitled to summary judgment on the question of latency.

¶36 I would also hold that the City is not entitled to summary judgment on the question of dangerousness. This court has not interpreted the term “dangerous” in the recreational use statute, but the Court of Appeals has held that a “dangerous” condition is one “that poses an unreasonable risk of harm.” Gaeta v. Seattle City Light, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989) (citing William L. Prosser, Handbook on the Law of Torts § 31 (4th ed. 1971)); Cultee v. City of Tacoma, 95 Wn. App. 505, 518, 977 P2d 15 (1999).

¶37 In support of his argument that the water diverter between the speed bump and the cutout was dangerous, Jewels offered a declaration of Jim Couch (a professional bicyclist) and a report by Edward Stevens (an engineer). The Couch declaration stated that Couch has “ridden all over the state of Washington through [his] many years as a competitive and recreational cyclist, and as a group ride leader,” and that in his opinion “[s]peed bumps are usually marked by warnings on the roadway such as yellow paint... to give people notice [and] most... do not take up the entire roadway.” CP at 108. Citing a study from San Jose, California, Stevens reported that obstructions like the water diverter— “abrupt . . . [b]umps,” as opposed to “gradual . . . humps”— have been shown to be “particularly extra hazardous for bicycle traffic.” CP at 80-81. Stevens also opined that “[t]he City of Bellingham installed an extra hazardous drainage feature across the Cornwall Park Road[, which] was known to cause loss of control for bicycles [and] light motorcycles, and was also recognized by the industry to cause operational problems for emergency vehicles.” CP at 81.

¶38 The City argues that Stevens’ report is inadmissible because it is unsworn. The City is correct that the report was not attached to a declaration, by Stevens, attesting to the truth of its contents. And it is true that unauthenticated *406evidence is inadmissible in opposition of summary judgment. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40 (2014). But the City did not object to the admission of Stevens’ report on that basis in the trial court. Instead, it objected that the report was irrelevant because it was “based on the alleged standards for speed bumps in a city street [, while] . . . the alleged accident occurred on a park access road which is not a platted, designed City of Bellingham street.” CP at 117. Because the City did not object that the report was unsworn, Jewels was afforded no opportunity to correct the error. I would therefore decline to address this unpreserved error now. See RAP 2.5.

¶39 The City also argues that Couch’s declaration is inadmissible under Rules of Evidence (ER) 702 because “it offers testimony on areas outside [Couch’s] expertise (park construction) and speculates on why Plaintiff made certain decisions.” City of Bellingham’s Suppl. Br. at 20.

¶40 This, however, is not an accurate characterization. In his declaration, Couch states that “[s]peed bumps are usually marked by warnings on the roadway such as yellow paint and/or through signage to give people notice.” CP at 108. The basis for that observation is Couch’s 30 years “in bicycle riding and coaching,” CP at 107 — experience sufficient to qualify him as an expert in the kinds of speed bumps that bicyclists typically encounter. See ER 702 (witness may be “qualified as an expert by ... experience”). Couch also opined that “it was reasonable for Mr. Jewels to believe that [the site of the accident] was a typical speed bump, particularly when the first speed bump he came to in the park fit that common pattern.” CP at 109. This was not, as the City asserts, “speculation]” about Jewels’ decision to ride over the water diverter. City of Bellingham’s Suppl. Br. at 20. Rather, it was an opinion about what bicyclists generally do and expect. As such, it was admissible under ER 702. See State v. Francisco, 148 Wn. App. 168, 177, 199 P.3d 478 (2009) (detective allowed to testify, as expert, that “drug users generally do not give away drugs”).

Reconsideration denied September 8, 2015.

¶41 The trial court correctly admitted both Stevens’ and Couch’s expert testimony. That testimony is sufficient to create a genuine issue of material fact as to whether the water diverter in proximity to the curb cutout posed an unreasonable risk of harm. Thus, I would hold that the City is not entitled to summary judgment on the issue of dangerousness.

CONCLUSION

¶42 The majority is correct that a plaintiff contesting recreational land use immunity need not show that the defendant knew the injury-causing condition was dangerous and latent. But the majority errs by limiting the class of general recreational users to those standing near the injury-causing condition.

¶43 Applying a broader definition of this general class, I conclude that Jewels has created genuine issues of fact as to latency and dangerousness. I would therefore reverse the Court of Appeals and remand to the trial court.

Stephens, Wiggins, and González, JJ., concur with Gordon McCloud, J.

To the extent that this conflicts with the reasoning in Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 872 P.2d 524 (1994), on which the majority relies, I would adhere to this court’s precedent.

This distinguishes Jewels’ case from both Van Dinter, 121 Wn.2d at 45, and Gaeta v. Seattle City Light, 54 Wn. App. 603, 610-11, 774 P.2d 1255 (1989), on which the majority relies for its holding on latency. See majority at 398. In both Van Dinter and Gaeta, the plaintiffs argued that a patent injury-causing condition posed a latent danger. Van Dinter, 121 Wn.2d at 45; Gaeta, 54 Wn. App. at 610. Both courts held that the recreational land use statute bars relief in that circumstance because the term “latent” in the statute modifies “condition” and not “danger.” Van Dinter, 121 Wn.2d at 45; Gaeta, 54 Wn. App. at 610.

This distinguishes Jewels’ case from Swinehart v. City of Spokane, 145 Wn. App. 836, 187 P.3d 345 (2008), on which the majority relies. See majority at 400. In Swinehart, the plaintiffs submitted photographs showing the alleged injury-causing condition: the displacement of cushioning wood chips beneath a city park slide. 145 Wn. App. at 852. They then argued that “ ‘[t]he photographs . . . reveal[ed] a poorly maintained surface at the slide exit[,] and no reasonable juror could refute this evidence.’ ” Id. (emphasis added) (first alteration in original). In other words, the plaintiffs argued that the injury-causing condition was readily apparent from the photographs. The Court of Appeals held that the plaintiffs thereby “seemingly acknowledge that the condition of the wood chips was visible and obvious at the time of the accident.” Id. In this case, Jewels does not argue that the photographs prove the existence of the injury-causing condition; rather, he argues that they reveal the condition’s latency.