Gaeta v. Seattle City Light
| Decision Date | 26 June 1989 |
| Docket Number | No. 21261-3-I,21261-3-I |
| Citation | 54 Wn.App. 603,774 P.2d 1255 |
| Parties | Donato GAETA, Appellant, v. SEATTLE CITY LIGHT, a subdivision of the City of Seattle, Respondent. |
| Court | Washington Court of Appeals |
K.R. St. Clair, Mt. Vernon, for Donato Gaeta.
James M. Doran, John C. Belcher, Belcher, Swanson, Lackey & Doran, Bellingham, for respondent.
Donato Gaeta appeals the trial court's dismissal of his action against Seattle City Light for injuries caused when the tire of his motorcycle caught in the tracks on Seattle City Light's road over Diablo Dam. We affirm.
Gaeta was a Connecticut resident engaged in a cross-country sightseeing tour by motorcycle. On August 5, 1985, Gaeta was driving the North Cascades Highway. He turned off the highway onto a road leading to Diablo Dam for the dual purpose of looking at the scenery and getting gas. As Gaeta proceeded down the road toward the dam, he encountered three diamond-shaped warning signs. These signs were as follows: (1) "10 m.p.h." advisory speed sign; (2) a sign warning of a "narrow road"; and (3) an S-shaped arrow, indicating a winding road.
The roadway atop Diablo Dam is under the control of Seattle City Light pursuant to its license with the United States government. That license provides in part as follows:
The licensee [Seattle City Light] shall interpose no objections to and shall in no way prevent the use of ... the reservoirs and project area for boating, fishing and other recreational purposes by the public when and to the extent that such public use does not directly interfere with power use.
Exhibit 1. The license also requires Seattle City Light to construct and maintain a roadway across Diablo Dam. Seattle City Light does not charge a fee to the public for the use of this property.
The road across the dam runs basically in a north-south direction. The road has parallel tracks, approximately 5 feet apart, running along the east side of the roadway, that is, on the right-hand side as one crosses the dam from south to north. Each track has a groove adjacent to it approximately 2 1/2 inches in width, which allows the wheels of a "mule" to run along the track. 1
Gaeta was crossing the dam from south to north on his motorcycle. He did not notice the tracks until he found himself on his motorcycle between the set of tracks on top of the dam. His motorcycle traveled between the tracks at approximately 10 m.p.h. for at least 60 yards. As Gaeta traveled along the roadway between the tracks, he became apprehensive of the potential danger posed by the tracks. He felt that they were dangerous because they were slippery. He then decided to cross the tracks by swinging out to his right and back to his left across the westernmost track. As he did so, a wheel of his motorcycle jammed in the groove next to the track, causing him to fall and sustain personal injuries.
Gaeta filed a complaint against Seattle City Light for failing to warn him about the tracks. The trial court granted Seattle City Light's motion to dismiss at the close of Gaeta's case. In ruling on this motion, the court concluded that the protection afforded by the Washington recreational use statute was applicable to Seattle City Light's road. The court also concluded that the ruts or grooves adjacent to the tracks on the top surface of Diablo Dam did not constitute a known, dangerous, artificial, latent condition.
To support his motion for reconsideration, Gaeta offered newly discovered evidence in the form of a photograph of a sign up and in place at Coulee Dam warning of the hazard of an exposed crane rail. This evidence was offered to contradict testimony of Seattle City Light's witness, Newby, who had testified that he had toured Coulee Dam and no such warning sign was present. The trial court denied Gaeta's motion for reconsideration. This appeal timely followed.
The Washington recreational use act, RCW 4.24.210, provides in part as follows:
Any public or private landowners or others in lawful possession and control of any lands ... who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to ... pleasure driving of ... vehicles, ... viewing or enjoying ... scenic ... sights, 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 for which warning signs have not been conspicuously posted The purpose of RCW 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.
RCW 4.24.200.
In Jones v. United States, 693 F.2d 1299 (9th Cir.1982), plaintiff Lisa was injured while inner tubing on forest land owned by the United States. She argued that the government received a " 'fee' " for her use of the park because she paid National Park Concessions, Inc. (NPC), a dollar to rent an inner tube. Jones, at 1303. NPC pays the government a fixed rental and a percentage of its gross receipts. The trial court held that the fee was charged for the use of the inner tube and was not a fee charged for the use of the land. The appellate court agreed, reasoning that Lisa entered the park without paying a fee and could use any area of the park without payment if she brought her own tube. Jones v. United States, supra at 1303.
Similarly, Seattle City Light does not engage in any commercial activities with the public at Diablo Dam. Although there is a resort located on the reservoir and the resort engages in commercial activities, Seattle City Light has no business interest in those activities. Gaeta was free to use the Diablo Dam land, regardless of whether he made any purchases at the resort.
Gaeta argues that because the United States government compelled Seattle City Light to open up the Diablo Dam area to the public for recreational purposes, it does not come within the operation of the statute. We find that if a person in lawful possession and control of lands allows the public to use them for recreational purposes without charging a fee, the recreational use statute applies. It is of no consequence that there may be a lease or franchise provision requiring the occupier to open the lands to the public.
Gaeta cites Smith v. Southern Pac. Transp. Co., 467 So.2d 70 (La.App.1985) in support of his argument that a roadway which can be put to nonrecreational use loses the protection of the recreational use act. The plaintiff, Smith, was a professional truck driver driving down Hospital Drive through City Park when his truck hit the bottom of a railroad overpass. Both the trial court and the Court of Appeals of Louisiana treated Hospital Drive as a public highway and held that the City of New Orleans breached its duty to Smith by failing to warn him of the low clearance. In addition, the appellate court noted that the City was raising the defense of the Louisiana recreational use statute for the first time on appeal. The court rejected this defense, stating that Smith was not using Hospital Drive for recreational purposes.
Smith may be distinguished from the case at bar. Smith was a professional truck driver driving a large truck through downtown New Orleans on a thoroughfare which happens to cut through City Park for a portion of its length. The roadway was built and maintained primarily for commercial use, as opposed to recreational. On the other hand, Gaeta was riding his motorcycle on a cross-country tour and turned off the main highway onto the Diablo Dam roadway. The Diablo Dam roadway is not a thoroughfare, but leads only to the reservoir and abutting lands left open by Seattle City Light to the public for recreational use.
Gaeta next argues that the recreational use act does not apply because his sole purpose in using the Diablo Dam roadway was commercial, to reach the resort where he could purchase some gasoline for his motorcycle.
We find the proper approach in deciding whether or not the recreational use act applies is to view it from the standpoint of the...
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