(dissenting) — The question is whether RCW 4.24.200-.210 bars this action by plaintiffs. Contrary to the majority, I believe it is demonstrable both by the legislative history and by the language of the statute that the action may be brought.
It is not beyond the ambit of judicial notice to observe that, beginning in the early part of the 1960's, the United States and the state of Washington experienced a rapid explosion of all aspects of outdoor recreation. While there was a significant governmental response to the need for more recreational land (see, e.g., Referendum Bill No. 11, approved November 3, 1964 (Laws of 1963, 1st Ex. Sess., ch. 12, p. 1352)), it was apparent that large acreages of private land could also add to the available outdoor recreational resources. To help meet this need, a model act, "Public Recreation on Private Lands: Limitations on Liability", was promulgated by the Council of State Governments in 1965. 24 Suggested State Legislation, Council of State Governments 150-52 (1965). The introductory paragraphs to the act stated:
Where the owners of private land suitable for recreational use make it available on a business basis, there *379may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises. However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.
The suggested act which follows is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner. In the case of lands leased to states or their political subdivisions for recreational purposes, the legislation expressly provides that the owner will have no remaining liability to recreationists, except as such liability may be incorporated in an agreement, or unless the owner is compensated for the use of the land in addition to consideration for the lease.
24 Suggested State Legislation, supra at 150. See also J. Barrett, Good Sports and Bad Lands: The Application of Washington's Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1 (1977).
In the original act, Laws of 1967, ch. 216, p. 1055, it is a clear inference from both section 1 (now RCW 4.24.200) and section 2 (now RCW 4.24.210, as amended) that recreational use was to be only a secondary or contingent use: e.g., "The purpose of this act is to encourage owners of land to make available land and water areas to the public for recreational purposes ..." (section 1), and "Any landowner who allows members of the public to use his agricultural or forest land for the purposes of outdoor recreation . . ." (section 2). The arrangement was clear: While the *380primary use of the land would continue to be for agriculture or forestry, a secondary use, without fee, for recreation would be allowed by the landowner in exchange for a limitation of liability. The 1969 and 1972 amendments did nothing to contradict this arrangement, but simply extended the limitation of liability to other uses and areas as well as to public owners and possessors. Nothing in the legislative background or history of the act nor in its language leads to any other conclusion than that RCW 4.24-.200-210 is intended to cover a situation where public recreational use is a secondary and not a primary use of the land or water. That is not the situation in this case.
Here the Manson Park and Recreation District was not simply "mak[ing] available land and water areas to the public for recreational purposes" or passively "allow[ing] members of the public to use" the area. It was actively and purposefully operating for the use of its citizens a recreational area which included a public swimming area with a public dock and a diving platform. It provided lifeguard services 6 days a week and had attempted to hire a lifeguard for the seventh day. Defendant is a taxing district and three-fourths of the moneys raised, by taxes, the year of the accident in this case, were allocated to provide a lifeguard for the swimming facility. The recreational use was primary and exclusive.
The majority invites the plaintiff to carry the primary/secondary use distinction to the legislature. There is no need for that.' The legislative language and purpose is plain. The defendant should not be allowed to hide behind a statute which in neither intent nor content was meant to provide it immunity.
I dissent and would reverse the trial court and remand for trial.
Utter, C.J., and Brachtenbach and Horowitz, JJ., concur with Dolliver, J.