Cregan v. Fourth Mem'l Church

• Decision Date: 13 September 2012
• Docket Number: No. 86835–2.,86835–2.
• Citation: 285 P.3d 860
• Court: Washington Supreme Court
• Parties: Gavin J. CREGAN, a married man, Respondent, v. FOURTH MEMORIAL CHURCH, a nonprofit Washington corporation, d/b/a Riverview Bible Camp, Petitioner. Fourth Memorial Church, a nonprofit Washington corporation, d/b/a Riverview Bible Camp, Plaintiff, v. Beats & Rhythms, a Washington corporation, Defendant.

285 P.3d 860

Gavin J. CREGAN, a married man, Respondent,

v.FOURTH MEMORIAL CHURCH, a nonprofit Washington corporation, d/b/a Riverview Bible Camp, Petitioner.

Fourth Memorial Church, a nonprofit Washington corporation, d/b/a Riverview Bible Camp, Plaintiff,

v.Beats & Rhythms, a Washington corporation, Defendant.

No. 86835–2.

Supreme Court of Washington,

En Banc.

Sept. 13, 2012.

Daniel Edward Huntington, Richter–Wimberley PS, Spokane, WA, for Respondent.

Matthew Thomas Ries, Eric Roche Byrd, Stamper Rubens P.S., Spokane, WA, for Petitioner.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, Amicus Curiae on behalf of Washington State Association.

C. JOHNSON, J.

¶ 1 This case involves whether the recreational use immunity statute, RCW 4.24.200–.210, applies under the circumstances where a landowner, who otherwise operates an admission fee-based camp, allows a group access for no charge. During the group's stay at the camp, the plaintiff was injured when riding a slide on the property. The camp asserted recreational use immunity as a defense to the claim. On summary judgment, the trial court ruled that the camp was not immune from liability under the statute because it normally charged fees for the recreational use. This interlocutory appeal was certified after the trial court found there was likely a substantial ground for difference of opinion. We affirm and hold that recreational use immunity is not available under these circumstances because the property is not open to the general public.

FACTS

¶ 2 Riverview Bible Camp is privately owned by Fourth Memorial Church, a nonprofit organization and the petitioner in this case. Riverview offers a wide range of adventure activities, including a high rope course, a 40–foot outdoor climbing wall, “zip-lining,” archery, paintball, a large water trampoline, an outdoor skate park, and a multilane slide. Riverview Bible Camp, http:// www. riverviewbible camp. com/ activities. php# (last visited Aug. 31, 2012). It is financially viable through rental fees, donations, and assistance from Fourth Memorial and is promoted through outreach, flyers, brochures, DVDs (digital video disks), and a web site. Generally, only secular or Christian groups are permitted to rent Riverview. Individuals and walk-ins are not allowed. In 2008, Riverview allowed an organization named “Beats & Rhythms” to use the facility at no charge under a rental and indemnity agreement. It was the only group granted a fee waiver in 2008 and 2009.

¶ 3 During Beats & Rhythms' stay at Riverview, respondent Gavin Cregan was with the group and served as the group's volunteer nurse. On the first day of the camp program, Cregan and others rode on burlap bags down the “Giant Slide,” a multilane slide originally built for the Spokane Expo '74 world's fair. Cregan rode the slide two or three times, using a different lane each time. Clerk's Papers at 5. On his last trip down, Cregan's legs lifted off the slide after riding over the first hump. His left foot landed off the burlap bag, caught the slide, and rolled under his leg. As a result, Cregan suffered fractures, leaving him with permanent motion restriction in his left leg and ankle.

¶ 4 Cregan brought a premises liability action against Fourth Memorial. Fourth Memorial raised an affirmative defense, asserting it was immune from liability under the recreational use immunity statute, RCW 4.24.200–.210. Fourth Memorial also cross-complained against Beats & Rhythms, alleging that if found liable, it was entitled to indemnification from the group pursuant to their rental and indemnity agreement.

¶ 5 Cregan and Fourth Memorial filed cross-motions for summary judgment on the issue of Fourth Memorial's statutory immunity defense. The trial court granted Cregan's motion, striking the immunity defense, and denied Fourth Memorial's motion. The trial court ruled that immunity was unavailable as a matter of law because Fourth Memorial charged fees for the precise same use that Beats & Rhythms and Cregan were afforded.

¶ 6 Fourth Memorial sought interlocutory appeal of that decision. The trial court certified for discretionary review the question of whether RCW 4.24.200–.210 applied to this case. The appeal was transferred from the Court of Appeals to this court after we granted direct discretionary review. ¹

ANALYSIS

¶ 7 Washington's recreational use statute, RCW 4.24.210, in relevant part, provides:

(1) Except as otherwise provided ... any public or private landowners, ... or others in lawful possession and control of any lands whether designated as 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 ... hunting, fishing, camping ... without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

(Emphasis added.) The purpose of the statute is to encourage landowners to open their lands to the public for recreational use by limiting their liability toward persons entering thereon. RCW 4.24.200. This statute modified common law premises liability regarding public invitees.² Because recreational use immunity is an affirmative defense, the landowner has the burden of proving it applies. On summary judgment, the trial court ruled immunity was unavailable as a matter of law. We review summary judgment orders and questions of statutory interpretation de novo.

¶ 8 Significant here, to be immune under RCW 4.24.210(1) the landowner must establish that the use (1) was open to members of the public (2) for recreational purposes and (3) no fee of any kind was charged. Both parties agree that camping is a recreational use falling within the statute's scope. The parties disagree as to whether Fourth Memorial, as a matter of law, can establish that it meets the other two requirements.

¶ 9 To establish the public requirement, Fourth Memorial characterizes Riverview's purposes as commercial recreational and public recreational. Fourth Memorial argues that when property has different purposes, courts have focused on the landowner's use at the particular time of the injury. It contends Cregan was a public user because he was charged no fee. Fourth Memorial then concludes that because the land was being used publicly, for recreational use, and for free at the time of the injury, recreational use immunity applies. Although Fourth Memorial relies on several cases for support, none are helpful here. The cases either involved nonrecreational versus recreational uses ³ or recreational use where no fee was ever charged.⁴ Unlike in those cases, here, Fourth Memorial operates a commercial recreational facility, contending its secondary use is as a public facility. It distinguishes its commercial activities and argued “public” use is based solely on whether a fee was charged. This incorrectly assumes that free access alone qualifies the injured person as a member of the public.

¶ 10 The public and free-use requirements under RCW 4.24.210(1) are separate inquiries. Key to resolving this case is whether Riverview was open to the public. “Public” is not defined in the statute. Where a term is undefined, we apply the plain meaning of the word and may consult a dictionary. State v. Gonzalez, 168 Wash.2d 256, 263, 226 P.3d 131 (2010). “[P]ublic” means “[o]pen or available for all to use, share, or enjoy.” Black's Law Dictionary 1348 (9th ed. 2009). Fourth Memorial argues it is required to open its land only to members of the public and not the entire general public at all times for the statute to apply. Meaning, a landowner is not required to let...