Chamberlain v. Department of Transp., No. 35244-0-1

• Court: Court of Appeals of Washington
• Writing for the Court: COX
• Citation: 79 Wn.App. 212,901 P.2d 344
• Parties: William CHAMBERLAIN, as Personal Representative of the Estate of Kekoa Chamberlain, deceased, Appellant, v. The STATE of Washington DEPARTMENT OF TRANSPORTATION; Karl Thorval Sorensen and Jane Doe Sorensen, Respondents.
• Decision Date: 05 September 1995
• Docket Number: No. 35244-0-1

Page 212

79 Wn.App. 212 901 P.2d 344 William CHAMBERLAIN, as Personal Representative of the
Estate of Kekoa Chamberlain, deceased, Appellant,
v.
The STATE of Washington DEPARTMENT OF TRANSPORTATION; Karl
Thorval Sorensen and Jane Doe Sorensen, Respondents. No. 35244-0-1. Court of Appeals of Washington,
Division 1. Sept. 5, 1995.

[901 P.2d 345]

Page 214

Timothy McGarry, Seattle, for appellant.

John Kirschner, Asst. Attorney General, Seattle, for respondents.

COX, Judge.

Kekoa Chamberlain, a 7-year-old boy, and his family were sightseeing on the Deception Pass Bridge. They crossed the roadway between the abutting walkways to take pictures and to enjoy the view. While Kekoa was standing near the edge of one of the walkways, a passing motorist struck him. He [901 P.2d 346] died later that day. His estate sued the motorist and the State. The trial court granted the State's motion for summary judgment of dismissal. The estate appeals. Because recreational use immunity (RCW 4.24.200-.210) bars recovery against the State under the circumstances of this case, we affirm.

On February 18, 1991, Kekoa Chamberlain, his parents, and his two sisters were visiting Whidbey Island. They stopped at the Deception Pass Bridge to view the scenery from the bridge. When they arrived, they parked in a lot at the southwest end of the bridge. Signs posted at the end of the bridge declared it to be a "Scenic Overlook" and warned both of the presence of pedestrians on the bridge and the danger posed by passenger side mirrors on the passing vehicles to pedestrians on the walkways.

William Chamberlain, Kekoa's father, and his three children used the walkway on the west side of the bridge to walk to the center of the span. After a few minutes, Mr. Chamberlain and his oldest daughter crossed to the walkway on the east side of the bridge. The two took pictures of the others and crossed back and forth a couple of times. The Chamberlains had been on the bridge about 15 or 20 minutes when Karl Sorensen drove his

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1971 Chevy Blazer onto the bridge at approximately 20 miles an hour. He saw Kekoa standing near the edge of the walkway as he approached and heard a "thud" as he passed that spot. Sorensen pulled over at the end of the bridge and ran back to find Kekoa lying in the road. Kekoa was pronounced dead later that day.

William Chamberlain, as the personal representative for the estate of Kekoa Chamberlain, commenced this action against Sorensen and the State of Washington. Sorensen settled separately with the estate. The State moved for summary judgment, asserting that it was immune from liability under the recreational use immunity statute, RCW 4.24.200-.210. The trial court granted summary judgment to the State after concluding that (1) the State was entitled to recreational use immunity under RCW 4.24.200-.210; and (2) no act or omission of the State was a legal proximate cause of the accident resulting in Kekoa's death. The estate appeals the summary judgment of dismissal.

I. Recreational Use Immunity Statute

In reviewing a summary judgment order, we engage in the same inquiry as the trial court. Tollycraft Yachts Corp. v. McCoy, 122 Wash.2d 426, 431, 858 P.2d 503 (1993); Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990). Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Marincovich, 114 Wash.2d at 274, 787 P.2d 562. On appeal of a summary judgment order where the facts relevant to the issue on appeal are not in dispute, the standard of review is de novo. Tollycraft Yachts, 122 Wash.2d at 431, 858 P.2d 503. When reasonable minds can reach but one conclusion, questions of fact may be determined as a matter of law. Ruff v. King County, 125 Wash.2d 697, 704, 887 P.2d 886 (1995) (quoting Hartley v. State, 103 Wash.2d 768, 775, 698 P.2d 77 (1985)). More than speculation or mere possibility is required to

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successfully oppose summary judgment. Pelton v. Tri-State Memorial Hosp., 66 Wash.App. 350, 355, 831 P.2d 1147 (1992).

Chamberlain first contends that the recreational use immunity statute, RCW 4.24.200-.210, does not apply in this case. Former RCW 4.24.210 provides in pertinent part:

Any public or private landowners or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to ... viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users: ... Provided further, that nothing in this section shall prevent the liability of such a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition [901 P.2d 347] for which warning signs have not been conspicuously posted ...

RCW 4.24.200, which addresses the purpose of the recreational use immunity statute, provides:

The purpose of RCW 4.24.200 and 4.24.210 is to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.

The recreational use immunity statute clearly applies to both public and private landowners, and it is undisputed that the Chamberlain family was on the bridge on the day of the accident for recreational purposes. They were viewing the scenery from the walkways along the bridge. It is also undisputed that the...