Curran v. City of Marysville

• Decision Date: 30 January 1989
• Docket Number: No. 21850-6-I,21850-6-I
• Citation: 53 Wn.App. 358,766 P.2d 1141
• Parties: Linda K. CURRAN, individually and as Guardian ad Litem of Amber Cole, a minor, Appellant, v. The CITY OF MARYSVILLE, a municipal corporation, and Harry Stewart and Jane Doe Stewart, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 358

53 Wn.App. 358

766 P.2d 1141

Linda K. CURRAN, individually and as Guardian ad Litem of Amber Cole, a minor, Appellant, v. The CITY OF MARYSVILLE, a municipal corporation, and Harry Stewart and Jane Doe Stewart, husband and wife, Respondents.

No. 21850-6-I.

Court of Appeals of Washington Division 1.

Jan. 30, 1989.

James J. Rosenberger, Seattle, Paul J. Burns, Spokane, for Linda K. Curran and Amber Cole.

Michael C. Walter, Keating, Bucklin & McCormack, Seattle, for City of Marysville.

Jennifer Schneider, Seattle, for Harry Stewart.

WINSOR, Judge.

Linda Curran appeals from two orders of summary judgment dismissing all claims brought against codefendants the City of Marysville (City) and Harry and Jane Doe Stewart (Stewart). Curran contends that the trial court erred in finding the City immunized from liability under RCW 4.24.210, and that the record presents genuine issues of material fact as to Stewart's alleged negligence. We affirm.

On September 1, 1984, 10-year-old Amber Cole broke her arm while attempting to hurdle a "T-Bar" located at Jennings Memorial Park in Marysville, Washington. Amber was at the park with her grandfather, Harry Stewart, and other family members and friends.

The T-Bar on which Amber injured herself is located in the park's fitness and exercise court. Its intended use is as a device for stretching calf and hamstring muscles. Large signs in the exercise court area explain and illustrate how Neither Stewart nor the other adult member of the group was with Amber when she attempted to hurdle the T-Bar. Stewart had allowed Amber and an 8-year-old friend to go to the exercise court while he and the rest of the party visited a garden approximately 25 yards away. Although Stewart could not see Amber from the garden, she was within his hearing distance.

                to use the T-Bar.   Amber used the T-Bar as illustrated, but quickly became bored with this activity.   She then tried to hurdle the T-Bar, fell, and broke her arm
                

After Amber's injury, her mother, Curran, brought suit against the City individually and as Amber's guardian ad litem. Curran alleged that the exercise court was "a known, dangerous, artificial, latent condition" for which the City had negligently failed to post conspicuous warning signs, and that it was an attractive nuisance. Curran later amended her complaint to add Stewart as a co-defendant. She alleged that Stewart's negligent supervision proximately caused Amber's injury.

In answer to Curran's complaint, the City asserted Washington's recreational use statute, RCW 4.24.200-.210, as an affirmative defense. The City alleged that the statute immunized it from all liability. Curran moved for an order holding the statute inapplicable to "an accident involving the use of jogger's warm-up equipment maintained in a city park." The trial court denied Curran's motion, and ruled RCW 4.24.210 applicable to the facts of this case. The City and Stewart then moved for orders of summary judgment dismissing all claims against them. The trial court found no material issues of fact and granted each party's motion. Curran sought direct review of both summary judgment orders in the Supreme Court. That court declined review and transferred the matter to this court for determination.

STATUTORY IMMUNITY

We first consider whether the trial court erred in holding that RCW 4.24.210 applies to the facts of this case. RCW 4.24.210 limits the liability that can be imposed on public As first enacted in 1967, RCW 4.24.210 provided that the outdoor recreation for which liability was limited included "hunting, fishing, camping, picnicking, hiking, pleasure driving, nature study, winter sports, [and] viewing or enjoying historical, archaeological, scenic, or scientific sites" conducted on agricultural or forest land. Laws of 1967, ch. 216, § 2. In this form, the statute would not have applied to the instant case.

or private landowners who allow members of the public to use their property for outdoor recreation purposes. ¹

Subsequent amendments, however, significantly broadened the statute's original scope, both as to affected lands, and as to activities encompassed within the term "outdoor recreation." In 1972, the statute was amended to expressly include both public and private landowners. Laws of 1972, 1st Ex.Sess., ch. 153, § 17. In 1979, it was amended to include "any lands whether rural or urban." Laws of 1979, ch. 53, § 1. A series of amendments added several illustrative outdoor recreation activities to the statute, including:

                swimming, boating, water sports, driving all-terrain vehicles and snowmobiles, bicycling, riding horses or other animals, clam digging, and firewood cutting for personal use.   Laws of 1980, ch. 111, § 1;  Laws of 1979, ch. 53, § 1;  Laws of 1972, 1st Ex.Sess., ch. 153, § 17;  Laws of 1969, 1st Ex.Sess., ch. 24, § 2.   The 1979 amendments also broadened the scope of "outdoor recreation" by specifying that the term includes, "but is not limited to," the listed activities.  (Emphasis added.)   Laws of 1979, ch. 53, § 1
                

Curran contends that the legislative history of RCW 4.24.210 indicates the statute was not intended to apply to accidents occurring in municipal park playground and exercise areas. ² She also argues that Amber's playground activity was not "outdoor recreation" within the meaning of RCW 4.24.210. We disagree.

Curran's legislative history argument overlooks the broadening effect of subsequent amendments to RCW 4.24.210. The statute now expressly includes any publicly-owned lands, whether rural or urban. This language necessarily includes a municipal park and its play and exercise areas, and has been so interpreted by the Washington courts. See Partridge v. Seattle, 49 Wash.App. 211, 741 P.2d 1039 (1987) (RCW 4.24.210 applied to a diving accident which occurred in water just outside the public swimming area at a Seattle city park); Preston v. Pierce Cy., 48 Wash.App. 887, 741 P.2d 71 (1987) (RCW 4.24.210 applied to an Curran's contention that Amber's activity is not encompassed by the term "outdoor recreation", as used in RCW 4.24.210, requires somewhat more analysis. No Washington court has expressly held that RCW 4.24.210 limits liability for injuries resulting from children's play on playground or exercise apparatus, although that result is implied by opinions construing the statute. See Preston v. Pierce Cy., supra (in the context of a playground accident, the court discussed the applicability of exceptions to RCW 4.24.210 without expressly addressing whether the statute applied to the activity). We conclude that the statute must so apply, given the ever broadening effect of the Legislature's amendments to the statutory language. ³

accident which occurred on a merry-go-round located in a Pierce County park); Riksem v. Seattle, 47 Wash.App. 506, 736 P.2d 275 (1987) (RCW 4.24.210 applied to a bicyclist-jogger accident on a recreational trail located in part within Seattle city limits).

RCW 4.24.210 describes "outdoor recreation" as including, but not limited to, cutting and gathering firewood, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, riding horses or other animals, clam digging, pleasure driving off road vehicles, snowmobiling, boating, nature study, winter or water sports, and viewing or enjoying historical or scientific sites. In 1977, before the Legislature added bicycling, horseback riding, clam digging, and firewood gathering to the list of included activities, one commentator made the following analysis:

Unlike some state statutes which limit applicability of recreational use legislation to certain specific activities, the Washington act applies broadly to all outdoor recreation....

With respect to R.C.W. § 4.24.210, all the individual recreational activities listed characteristically occur outdoors. Moreover, from the express use of the phrase "outdoor recreation," it can be inferred that the act applies specifically to injuries which occur in large, open spaces. It seems unlikely that the statute would cover such mishaps as a fall on a walkway while entering a dance or injuries suffered while playing or watching an indoor sport....

How physical the outdoor activity must be before it comes within the scope of the statute is another matter. Among the recreational activities listed ... are "nature study," and "viewing or enjoying historical ... sites." Arguably, even walking across the ground is included.

(Footnotes omitted.) J. Barrett, Good Sports and Bad Lands: The Application of Washington's Recreational Use Statute Limiting Landowner Liability, 53 Wash.L.Rev. 1, 20-21 (1977).

As Barrett concludes, the single unifying element in the listed activities is that each occurs outdoors. Some of the activities occur in the outdoors in its natural state (hunting, fishing, clam digging), while others more commonly occur on property improved so as to facilitate recreation (swimming, bicycle riding). Some require the use of mechanical equipment or devices (bicycling, snowmobiling, boating), while others require only the actor (swimming, hiking). It has already been held that the statute encompasses injuries incurred while using specially constructed recreational equipment. McCarver v. Manson Park & Rec. Dist., 92 Wash.2d 370, 597 P.2d 1362 (1979) (statute immunizes district from liability for fatal injury incurred when 14-year-old fell from diving tower onto dock).

We conclude that "outdoor recreation" as now used in RCW 4.24.210 encompasses all recreational activities which commonly are conducted outdoors. Recreational activities are those which "provide diversions or amusements," Webster's Third New International Dictionary 1899 (1971), and thus include the play which led to Amber's injury.

We hold that RCW 4.24.210 applies to accidents on municipal park playground and exercise apparatus, and affirm the order of summary judgment dismissing Curran's claims against the City. ⁴

NEGLIGENT SUPERVISION...