Ravenscroft v. Washington Water Power Co.

Madsen, J.

(dissenting) — Resolution of this case turns on whether a submerged tree stump constitutes an artificial and latent condition. Because two natural conditions, readily ascertained by a recreational user, cannot combine to make one artificial condition, I respectfully dissent from the majority’s holding that the submerged tree stump was an artificial condition.

The majority’s first error is adopting a dictionary definition of “artificial,” leading it to erroneously conclude that the injury causing condition, a stump, is artificial because the natural condition of the water channel was changed by Washington Water Power Company (WWP). In reaching its conclusion, the majority misstates this court’s holding in Van Dinter v. City of Kennewick, 121 Wn.2d 38, 846 P.2d 522 (1993), and attributes the natural occurrences of the high water and dying trees in the water channel to the man-made nature of the Long Lake reservoir.

I disagree with the majority’s interpretation of the statute which effectively characterizes any man-made change in recreational use areas as an “artificial condition.” Such a definition undermines the purpose of RCW 4.24.200 and 4.24.210 as well as a substantial body of case law decided under the statute, while providing no clear guidance for future courts’ determination of whether an injury was sustained “by reason of a known dangerous artificial latent condition.” RCW 4.24.210(3).

I. Artificial

The recreational use statute, RCW 4.24, is intended to encourage and protect owners of recreation areas who open their land to the public for recreational purposes. The statute applies broadly to all outdoor recreation, offering protection regardless of whether the land or water area is man made. As the majority recognizes, the statute’s limitation on liability applies equally to areas which do not remain in a natural state, e.g., a gravel mound on an exea*933vation site, a logging road in the woods, a mixed-use trail in Seattle, and a scenic overlook bridge. Majority at 922-23. Moreover, the statute makes no distinction between artificial and natural bodies of water. The exception to the statutory grant of immunity is triggered only when each of the four elements, “known,” “dangerous,” “artificial,” and “latent” is present in the alleged injury causing condition. Tabak v. State, 73 Wn. App. 691, 695, 870 P.2d 1014 (1994) (each condition must be present before a landowner’s duty to warn arises).

Considering the exacting language of the statutory exception in conjunction with the legislative intent to encourage private landowners to open their land to the public and the incentive of landowner immunity set forth in RCW 4.24, it is clear that this court should narrowly interpret the terms “known,” “dangerous,” “artificial,” and “latent.” RCW 4.24.210(3). Nevertheless, the majority adopts a broad, literal dictionary definition of “artificial” as “a condition contrived through human effort,” blurring the line between man-made changes which are protected under the statute and those which trigger liability.

In my view, this court should read “artificial condition” within the context of the statute as a whole and limit its meaning to conditions which are actually man made and not occurring in nature, rather than the dictionary definition adopted by the majority.7 Such a construction would provide future courts with meaningful distinctions in the examination of whether an injury was sustained by reason *934of a “known dangerous artificial and latent condition.” RCW 4.24.210(3).

Turning to this case, we have recognized that regardless of whether a body of water is man made, changing contours in any given body of water are generally considered natural conditions. Ochampaugh v. City of Seattle, 91 Wn.2d 514, 524, 588 P.2d 1351 (1979) (slippery debris, changing contours and murky muddy waters of a man-made pond are natural conditions). The body of water at issue here is characterized by rising water levels and dying trees which are natural to a water channel. Given that bodies of water inevitably experience changing contours over time, including varying water levels and decaying trees, I cannot agree with the majority’s characterization of these natural conditions in the water channel as artificial.

Although the majority places great weight on the rise in water level, the fact that construction of a dam caused a rise in the water level does not alter the analysis. As the Court of Appeals correctly held, higher water levels in the channel do not constitute an “artificial” condition merely because the changes may have been related to the erection of a dam. Ravenscroft v. Washington Water Power Co., 87 Wn. App. 402, 412, 942 P.2d 991 (1997), review granted, 134 Wn.2d 1018 (1998) (citing Chamberlain v. Department of Transp., 79 Wn. App. 212, 901 P.2d 344 (1995)); also Meyer v. General Elec. Co., 46 Wn.2d 251, 280 P.2d 257 (1955) (within the context of attractive nuisance, man-made waterways were found to possess the same naturally occurring conditions as those in natural bodies of water).8 To hold otherwise ignores the fact that the statutory immunity applies to both natural and man-made water areas.

*935In this case, there is no question that the specific instrument which caused plaintiff’s injury was one of several submerged tree stumps. However, the existence of a tree stump and similar debris in bodies of water has already been determined to be natural conditions. Swanson v. McKain, 59 Wn. App. 303, 313-14, 796 P.2d 1291 (1990) (finding floating log or stump to be a natural condition of the water area). Clearly, this court should not interpret the existence of a submerged tree stump in a water channel any differently than one that is found floating there, since they are one and the same and both conditions are natural to bodies of water. Id. Just as the existence, evolution, and deterioration of trees are characteristic of the changing contours of the water channel, the submerged condition of the tree stumps here reflects a natural transformation of trees.

Interestingly, even under its broad definition, the majority in this case stops short of defining either the body of water or tree stumps as artificial. Rather, it erroneously draws on our decision in Van Dinter to find that it is the relationship of these natural conditions to each other which creates the artificial condition. In Van Dinter, this Court engaged in a two-step inquiry to analyze whether an injury is caused “by reason of a known dangerous artificial latent condition.” Van Dinter, 121 Wn.2d at 43. The first step, the Court explained, is identification of the actual “condition” which allegedly caused the injury. Id. The plaintiff there claimed the proximity of a caterpillar play structure to the grassy area of the park was the injury-causing condition. The court agreed that the cause of the injury could not be regarded as the caterpillar in isolation from its surroundings. Id. This was true because the allegation was that if the border around the structure had been larger, plaintiff would not have been injured. Id. at 44. However, the court said, “[t]he caterpillar was thus not in itself causally sufficient to have caused the accident.” Id. (emphasis added).

Rather than identifying the injury-causing condition and deciding whether that condition is artificial, the majority *936determines whether the condition is “artificial” by asking whether the injury-causing condition’s relationship to the recreational area is the result of man-made change. Read carefully, however, Van Dinter does not state a rule that the injury-causing condition must be examined in light of its surroundings to decide whether the condition is artificial. Instead, Van Dinter directs that if the external circumstances are causally part of the condition which caused the injury, then the surrounding circumstances must be considered in deciding whether a condition is latent or artificial.

Turning Van Dinter upside down, the majority collapses the two-step inquiry, determining whether the submerged stumps are artificial based on their relationship to the water channel. Because the water channel is affected by man-made changes, the majority concludes that the submerged stumps must be artificial. The problem with the majority’s analysis is that it mistakenly attributes the natural occurrences in the water channel to WWP’s normal use of the man-made reservoir, confounding the natural process of the trees’ decay with the artificial existence and purpose of the hydroelectric project. In my view, the dispositive issue is whether, assuming the recreational area where the injury occurred is affected by man-made changes, the specific instrument that allegedly caused the injury is itself man-made and not a naturally occurring phenomenon in the area.

With nothing more than a dictionary definition of “artificial” and a confusing application of Van Dinter, future courts are left with little guidance in discerning the extent to which liability may arise due to injuries which are sustained as a result of man-made changes in recreational areas. This is particularly so given the cases which the majority acknowledges holding that man-made changes in recreational areas do not, as a general rule, trigger an exception to the immunity afforded by RCW 4.24.210. Rather than providing a definition consistent with the statute’s purpose of encouraging owners and possessors of *937potential recreation areas to open their property for public use, the majority’s interpretation of “artificial” erodes the statutory protection extended to landowners, and creates uncertainty in what ought to be a narrow inquiry into landowner liability.

Although erection of the dam and varied use of the reservoir may have affected the water flow to the channel, characterizing the submergence of the tree stumps as an artificial condition ignores the practical reality that numerous man-made lakes, rivers, and creeks across our state simulate nature and undergo natural processes that change the character of an area over time.

II. Latent

Because the court should hold that the submerged tree stumps are not an artificial condition, it should be unnecessary to address the issue of whether the condition is latent. Nevertheless, the majority’s analysis of the latency issue is also troublesome. That the submerged tree stumps are a natural occurrence in the water channel and that such a condition is characteristic of the changing contours of bodies of water suggest that the specific instrument which caused the injury is not latent. The majority believes that the record does not sufficiently support such a finding since other boaters indicated that the stumps were not apparent to them. However, as the court determined in both Swanson and Ochampaugh, dead trees and the changing contours of bodies of water are natural conditions which boaters in the area generally appreciate. Natural conditions in any given recreational area are characteristic of the area by definition. I would hold that as a matter of law the injury-causing condition was not latent. Just because a certain condition is not apparent to a particular user does not mean that it is not obvious and apparent to the general class of recreational users. Van Dinter, 121 Wn.2d at 46. Surely, a landowner is neither required to anticipate the various ways people might use its property, nor expected to predict the possible scenarios in which a user might fail to see a patent condition. Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 556, 872 P.2d 524 (1994).

*938Finally, I question the majority’s analysis of the duty owed, assuming this is an artificial latent condition. In determining whether WWP has a duty to warn recreational users of the supposed underwater hazard of submerged tree stumps, the majority believes that a general warning of the condition would be sufficient, rather than cautioning recreational users with a specific warning of every submerged tree stump in the water channel. Granted, a general warning may not be burdensome to WWR but such a remedy is meaningless, especially since dead trees and similar debris are presumed to be natural conditions in bodies of water. Swanson, 59 Wn. App. 303; Ochampaugh, 91 Wn.2d 514. In fact, the record indicates that many other recreational users were aware of the submerged tree stumps and excised caution. Clerk’s Papers at 27-28; 49; 65; 104. It is unlikely that a general warning of the existence of submerged tree stumps in the area will prevent accidents such as the one in this case, since without specific warning of the tree stumps’ exact location, the risks to boaters would remain the same.

Conclusion

RCW 4.24 was enacted to promote public recreational opportunities. The public benefit of additional recreational use areas is at the expense of the private landowner whose cost is offset by a grant of immunity. Within the context of this complementary relationship, the question of whether a condition is “known,” “dangerous,” “artificial,” and “latent,” specifically determines the extent to which a landowner is liable and whether a recreational user has a claim for injuries sustained at the recreational use area. Ideally, the more certain landowners are of their liabilities and immunities, the more they will open their lands to the public.9 To this end, the Legislature has clearly expressed its will. Rather than adding certainty to the relationship be*939tween the public and private landowner, however, the majority’s literal interpretation of “artificial” goes beyond the scope of the statute and undermines the very purpose for which the recreational use statute was enacted. I respectfully dissent.

Durham, C.J., and Talmadge, J., concur with Madsen, J.

Reconsideration denied February 10, 1999.

In this regard, some courts have declined to adopt the dictionary definitions of terms because such definitions are too literal, and go beyond the scope of recreational use statutes. Tijerina v. Cornelius Christian Church, 273 Or. 58, 539 P.2d 634, 637 (1975) (“agricultural lands” not interpreted as land that could simply be farmed since the fact that land could be farmed does not distinguish it from most of the land in the state); Herring v. Hauck, 118 Ga. App. 623, 165 S.E.2d 198 (1968) (recreational use statute intended to encourage landowners to make premises available for recreational purposes did not apply to friendly neighbor who permitted neighbors and friends to use his backyard swimming pool without charge); Shepard v. Wilson, 123 Ga. App. 74, 179 S.E.2d 550 (1970) (even though recreational statute’s express terms provide limited liability to landowner who directly or indirectly permits persons to use his property for recreational purposes without charge, statute did not apply to vacant lot in residential area). See generally John C. Barrett, Good Sports and Bad Lands: The *934Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1, 22 (1977).

Even if we consider the fact that Washington Water Power Company (WWP) increased power production and subsequently raised the water level of the reservoir in 1949, the water level of the reservoir has been maintained at a “normal pool elevation,” and water naturally flowed into the row of trees, eventually killing the trees. Clerk’s Papers (CP) at 176-77; 224-25. WWP cleared some of those dead trees in the area only after the trees died and left snags in the middle of the water channel. CP at 225.

John C. Barrett, Good Sports and Bad Lands: The Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1, 26 (1977).