Davis v. State

Citation102 Wash. App. 177,6 P.3d 1191,102 Wn. App. 177
Decision Date25 August 2000
Docket NumberNo. 24301-6-II.,24301-6-II.
CourtWashington Court of Appeals
PartiesJoseph Patrick DAVIS, Appellant, v. STATE of Washington, Respondent.

Glen Andrew Anderson, Asst. Atty. Gen., Olympia, for Respondent.

John Louis Messina, Jeffrey Howard Sadler, Messina Law Firm, Tacoma, for Appellant.


Joseph Davis seeks compensation from the State of Washington for the injuries he sustained when the motorcycle he was riding overturned. Davis had been riding at a state-owned recreation area. The trial court granted the State's motion for summary judgment, finding that the State was immune from tort liability under the recreational use statute, RCW 4.24.200 and .210. Davis argues that he followed motorcycle tracks in the sand leading to a drop-off and that the tracks constituted a known dangerous artificial latent condition for which the State is liable. We disagree and, thus, affirm.


On May 27, 1995, Davis and two companions were riding motorcycles over the sand dunes at Beverly Dunes Recreational Area, a popular spot for off-road vehicle enthusiasts. The State owns and operates Beverly Dunes as a recreation zone, accessible free of charge to the public.

Davis claims he was following motorcycle tracks left in the sand by other riders when his vehicle suddenly and unexpectedly went over a drop-off into a bowl-like depression. He sustained serious permanent injuries in the fall and he subsequently filed this lawsuit against the State.

The State moved for summary judgment, asserting immunity from liability under RCW 4.24.200 and .210. In response, Davis argued for application of the statute's immunity exception. The exception holds owners of recreational lands liable for injuries "sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted." RCW 4.24.210(3). There were no warning signs at Beverly Dunes.

The State supported its summary judgment motion with the declaration of James Munroe, the manager of Beverly Dunes. Munroe stated that the sand dunes had been left in their natural state; there had been no alterations made to them. He explained that the dunes are constantly shifting due to winds off the Columbia River and, as a natural result, the dunes typically have a gradual slope on the windward side and a steeper slope on the leeward side, where Davis's accident occurred.

The State contended that the condition that caused Davis's injury was the naturally occurring drop-off of the sand dune. It further claimed that the condition was neither artificial, latent, nor known by the State and, thus, the exception to the recreational use immunity statute did not apply.

Davis countered that the injury-causing condition was an "established trail" of tracks that led up to the deceptive drop-off in the sand dune. He argued that the condition was artificial, as the recreational vehicle tracks left by other riders had altered the land's natural contours. In support, he submitted several declarations and affidavits.

In an attempt to show the State's knowledge of the condition, Davis provided evidence of two earlier injury accidents at the same location, one in April 1995 and one in early May 1995. Although both were reported to local law enforcement, there was no evidence that State officials knew of the accidents.

Davis also produced evidence designed to show that the condition was "latent." According to several individuals, the drop-off was not visible to an approaching motorcyclist or a four-wheel recreational vehicle driver until it was too late to avoid going over the edge.

To establish artificiality, Davis provided affidavit testimony about tracks in the sand. Mathew Atterson, who accompanied Davis on the day of the accident, described the conditions as follows:

On May 27, 1995, ... [Joe Davis, Richard Riley and I] entered the recreational area to ride.
I believe there may have been a slight turn to the right from the campgrounds to enter the recreational area but, from then on, we headed straight. Initially, we experienced small bumps or ripples in the sand dunes. On the smaller bumps, the bikes would skip across them. There was the occasional sand hill, but they were not very big. We encountered the occasional desert plant. As we continued straight, we then encountered a wide open, fairly flat area. We continued to ride approximately 5 to 10 yards apart, sometimes closer and sometimes father apart.

We were following a distinct trail of tracks leading us straight. We were following this trail as I felt we were supposed to. I was riding slightly behind Joe who was to my left. Richard was to my right. When I looked ahead, it appeared that the trail was to continue straight and then I could see a rise in the distance. All of a sudden, I saw Richard become airborne. I immediately hit my brakes. At that moment, I saw Joe, who was more ahead of me than Richard, also become airborne. My bike went over the lip of the drop-off and skidded down to the bottom of the drop-off. From there, I could see that it was a bowl which then climbs up to the rise which I had been seeing just seconds before the drop off [sic]. We had all been looking at it and, because all we could see was flat sand, we were unable to detect that there was a drop-off in the middle.

Clerk's Papers at 87-88.

Davis recalled the incident in his own affidavit:

We then rode into the recreational area riding abreast of each other. I was riding in the middle of the other two. I recall the area as being relatively flat and mostly sandy with the occasional brush. The sand dunes were small, not bigger than 6 feet. Each of us would cut off slightly to the right or left but, for the most part, we kept each other in eyesight. There were not a lot of others riders, but on average I recall seeing a recreational vehicle every couple of minutes.
We encountered a wider open area which had a slight incline to it. I recall riding down the center of it. There were no dips or sand dunes in this particular area. It was straight riding and I was following tire tracks on a trail. I had been looking straight ahead and it appeared that this terrain was going to continue as a straightaway for quite some distance. All of a sudden, I saw that there was a drop off at the moment my bike became airborne and fell into what I call a sinkhole. I did not see the drop off until I was on the edge of it.

Clerk's Papers at 120-21.

Davis also submitted an affidavit from Robert J. Cunitz, a certified human factors professional, who attested:

In this case, I have reviewed photographs of the scene of the incident and surrounding area, taken on the day of the incident and two days after the incident. I have viewed a videotape, also taken two days after the incident, which shows the path taken by the plaintiff, Joseph Davis, leading up to where the incident occurred, the scene of the incident and the surrounding area. I have, also, reviewed incident reports for this and other incidents in the same location, as well as the declarations of Robin Hale, Julia Dunn and Todd Dunn.
In my expert opinion, the condition present at the Beverly Dunes Recreational Area was hidden to the reasonable recreational user. In particular, it is evident that there are many vehicle tracks leading up to the precipice where Mr. Davis became airborne and was injured. It is evident that a rider is led from the entrance of the recreational area by a path which brings the rider to the precipice without an opportunity to review or otherwise discover the hidden and camouflaged hazardous drop-off. It is hidden and camouflaged from view and is not readily discernable [sic] in time to avoid disaster by the ordinary prudent off-road vehicle rider who has not been alerted to the hazard.
It is clear from the videotape that there is a perception that there is no drop-off on the path and that the path appears to be a continuing level surface. This drop-off was completely camouflaged to the reasonably prudent recreational user.
Further, it is my opinion that the natural state of the area where the incident occurred has been changed. The area appears to have been modified by recreational vehicles which have created ruts and tracks leading directly to the drop-off.
The ruts and tire marks of the recreational vehicles gave the appearance of a delineated trail which lead [sic] to this hazard for which there was no warning. It is my expert opinion that the use of the area which created the trail made the area that much more dangerous and deceptive than if it had been left in its natural state.

Clerk's Papers at 83-84.

The trial court granted the State's motion for summary judgment, concluding that the injury-causing condition was not artificial. It framed the issue as "whether the use by other recreational users changes the condition of the property from natural to artificial." After reviewing the clause in the statute that describes the statute's purpose, the court held that the condition was not artificial as a matter of law.


When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

If the plaintiff "fails to make a showing sufficient to establish the existence of an element essential" to his case, there can be no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Therefore, because "a complete failure of proof concerning an essential element of the nonmoving party's case...

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