Cultee v. City of Tacoma, 23536-6-II
| Decision Date | 07 May 1999 |
| Docket Number | No. 23536-6-II,23536-6-II |
| Citation | 977 P.2d 15,95 Wn.App. 505 |
| Court | Washington Court of Appeals |
| Parties | Christine CULTEE, an individual, and personal representative for the Estate of Reabecka Ann Cultee, and Kevin G. Cultee, Appellants, v. The CITY OF TACOMA, a municipal corporation, Respondent. |
Jeffrey Frank Hale, Johnson Graffe Keay & Moniz, Tacoma, for respondent.
David A. Nold, Inslee Best Doezie & Ryder, Bellevue, for appellant.
Charles Henry Williams, Olympia, for plaintiff Cultee.
Christine Cultee appeals summary judgment dismissal of her wrongful death action against the City of Tacoma for the death of her five-year-old daughter Reabecka, who drowned while riding her bike at Nalley Ranch. Holding that there are issues of material fact that preclude application of Washington's recreational immunity statute, we reverse and remand for trial.
In 1992, the City of Tacoma purchased the Nalley Ranch, situated within the Skokomish Reservation in Mason County. A levee along the north edge of low-lying land on the east side of the ranch held back the waters of the Hood Canal. 1 To improve movement throughout the farm, the City rebuilt a series of elevated roads crisscrossing the property. While the levee was intact, the roads were untouched by the tidal waters outside the levee.
By resolution in 1994, the City opened most of its property to public recreational use, with the express purpose of invoking the protections of Washington's recreational use statute, RCW 4.24.210. The City operated the Nalley Ranch as a working farm until July 10, 1995, with an independent contractor raising and harvesting hay grown on the property. Two caretakers, Cindy and Robert Webb, lived on the property.
In December 1994, the Hood Canal levee broke and tidal waters flooded part of the east side of the farm at high tide. Although initially planning to repair the levee, the City decided to allow the affected part of the farm to return to its natural state. In the meantime, the City planned to install a gate on the west side of the farm to block access to the east side in order to protect both human beings and the environment. Nevertheless, members of the Skokomish Tribe were permitted to cross onto the east side of the farm to check their fish eddies; they generally used the so-called "Indian access road" to cross the east side of the farm. 2
Christine Cultee and her five-year-old daughter Reabecka had visited the Webbs at the Nalley Ranch caretakers' compound "once or twice" in the past. During these visits, Christine told Reabecka to "[s]tay around the house and don't go to the water" because Reabecka could not swim. Although Christine had not seen the destruction, she had heard Cindy and Robert talk about the tidal waters washing away most of the farm's roads. Cindy asserted she had previously told Christine that children were not allowed to go near the watery locations on the farm.
On June 23, 1995, Reabecka was visiting her grandfather, Lawrence Kenyon, who lived near the Nalley Ranch. Reabecka rode her bicycle to the farm with her cousins, twelve-year-old Jesse Cultee and ten-year-old Darryl Kenyon; all three children were members of the Skokomish Tribe. 3 Jesse At a point where there was no water on the road, the children stopped to check the water's depth along the side of the road and estimated it to be "two to five feet." 4 The children continued riding, not stopping until the road was covered by approximately two to four inches of muddy water. They rode about eight feet through the water on the road before dismounting their bikes to turn around. As Reabecka was mounting her bike, "she was too close to the edge and she fell in." 5 At this point the adjacent fields were flooded with several feet of water.
Cultee testified that the three children crossed the bridge to the east side of the farm and rode further into the farm property on the Indian access road.
Neither Darryl nor Jesse could swim. Jesse tried to reach Reabecka, but he did not enter the water because it "looked too deep." Darryl rode his bike for help and reached Cindy Webb. Cindy headed for the site while Darryl called 911. She found Reabecka floating face down in the tidal waters. Although Cindy could get within a couple of feet, she did not enter the water to reach Reabecka because she did not know how to swim.
The ambulance crew traveled the last distance to Reabecka's location by foot and four-wheel drive rescue vehicle because they believed the road to be unsafe for the ambulance. The water in which Reabecka was floating was "over their heads[.]" By the time paramedics retrieved Reabecka from the water, she was "completely purple." They performed CPR but were unable to resuscitate her.
Jesse Cultee's account is partially contradicted by Cindy Webb's deposition testimony that shortly before Reabecka drowned: she had seen the children cross the bridge onto the east side of the farm and head down the Indian access road; she heard one of children comment that they should not be going down this road; she then saw them cross back over the bridge; and she returned to the caretakers' house, without making contact with the children. 6
Robert Webb also testified that he had seen the three children on the east side of the farm on the day of the drowning. He had stopped his car as he was leaving the farm and told them that they should not be on the east side of the farm and they should "go back to the bridge[.]" He claimed they did so. His story conflicts with both Jesse's account and Cindy's.
Reabecka's parents, Christine and Kevin Cultee, filed separate wrongful death actions against the City. 7 The City defended on grounds that it was immune under the recreational use statute, RCW 4.24.210. Cultee responded that: (1) the recreational use statute did not apply because the Nalley Ranch was not open to the public for outdoor recreation; and (2) even if the statute did apply, the City was liable because the raised road, with its eroded edge hidden by the tidal waters twice daily, was a "known dangerous artificial latent condition for which warning signs [had] not been conspicuously posted." RCW 4.24.210(3).
The City countered that the recreational use statute did apply and that the road covered by tidal waters was either a "natural" condition or an "artificial condition simulating a natural condition," precluding liability. The City also denied that the condition was The trial court granted the City's motion for summary judgment. The court did not rule on whether the recreational use statute applied. Rather, it ruled that, although there was a genuine issue of fact as to the statute's applicability, this factual dispute was not material: (1) If the statute did not apply, Reabecka was a trespasser and the City had no duty to warn, to prevent access, or to take affirmative steps under Ochampaugh ; and (2) if the statute did apply, the tidal waters were a "natural" condition and, thus, the City was immune under RCW 4.24.210. The trial court denied Cultee's motion for reconsideration, and she appealed.
"dangerous" or that it had "knowledge" of any dangerous condition. It contended that an issue of fact concerning its knowledge was not established by a letter from one of its employees, written more than two weeks before Reabecka's death; this letter indicated that (1) the City's Public Utilities Department was planning to place a gate on its private road, near the Skokomish River, and (2) such a gate was "necessary for human safety and protection of the natural environment." 8 In the alternative, the City argued, if the statute did not apply, Reabecka was a trespasser and, under Ochampaugh v. City of Seattle, 9 the City was not liable for drownings of child trespassers.
In reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Ravenscroft v. Washington Water Power Co., 136 Wash.2d 911, 919, 969 P.2d 75 (1998) (Ravenscroft II ). 10 Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996). The facts and all reasonable inferences therefrom must be construed in the light most favorable to the nonmoving party. Degel, 129 Wash.2d at 48, 914 P.2d 728. Here, there exist genuine issues of material fact, bearing on whether the recreational immunity statute applies, such that summary judgment was not proper.
Washington's recreational use statute, RCW 4.24.210, provides, in relevant part:
(1) Except as otherwise provided in subsection (3) of this section, 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 ... hiking, bicycling ... without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.
....
(3)....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 for which warning signs have not been conspicuously posted. Nothing in RCW 4.24.200 and 4.24.210 limits or expands in any way the doctrine of attractive nuisance.
RCW 4.24.210. 11
To determine whether the statute applies, we view the circumstances from the standpoint of the landowner or occupier. Gaeta v. Seattle City Light, 54 Wash.App. 603, 608, 774 P.2d...
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