Home v. North Kitsap School Dist.

• Decision Date: 02 October 1998
• Docket Number: No. 21696-5-II,21696-5-II
• Citation: 965 P.2d 1112,92 Wn.App. 709
• Court: Washington Court of Appeals
• Parties: , 130 Ed. Law Rep. 297 Kurt HOME and Brenda Home, husband and wife, Appellants, v. NORTH KITSAP SCHOOL DISTRICT, Respondent. NORTH KITSAP SCHOOL DISTRICT, Third-Party Plaintiff, v. JOHN GRAHAM ASSOCIATES, Third-Party Defendants.

Page 709

92 Wn.App. 709

965 P.2d 1112, 130 Ed. Law Rep. 297

Kurt HOME and Brenda Home, husband and wife, Appellants, v. NORTH KITSAP SCHOOL DISTRICT, Respondent.

NORTH KITSAP SCHOOL DISTRICT, Third-Party Plaintiff, v. JOHN GRAHAM ASSOCIATES, Third-Party Defendants.

No. 21696-5-II.

Court of Appeals of Washington,

Division 2.

Oct. 2, 1998.

Eric Peter Gillett, Preg O'Donnell et al., Seattle, for Respondent.

Karl Francis Oles, Danielson, Harrigan & Tollefson, Seattle, for Third-Party Defendants.

Thomas Collins O'Hare, Smith, O'Hare & Mesenbrink, Silverdale, for Appellants.

MORGAN, Judge.

Kurt Home sued the North Kitsap School District for personal injuries sustained while coaching a junior high football game. North Kitsap moved for summary judgment, claiming that it was immune under RCW 4.24.210, the recreational land statute, and that Home had knowingly and voluntarily assumed the risk. The trial court granted the motion, and Home filed this appeal. We reverse.

In 1993, Home was a teacher in the Central Kitsap School District, an organization not related to the North Kitsap School District. He taught at Central Kitsap Junior High, where he was also a part-time assistant football coach. Ken Anderson was the head football coach.

On November 3, 1993, Home's Central Kitsap team played an away game on the football field at North Kitsap Junior High. Persons present included Home, Anderson, their team, and about 400 Central Kitsap parents, who had come as spectators. The football field is a permanent facility with football goal posts at each end and a track around the perimeter. It is available for public use when not being used for school events or activities. On November 3, it was being used exclusively for the North Kitsap-Central Kitsap football game, a school-sponsored event to which parents and other spectators were admitted without charge.

When Home and Anderson arrived at the North Kitsap field, they saw a curb "raised several inches above ground level," ¹ separating the football area from the track area. The curb ran along the outside of the football field's sideline area, not far from the sideline itself. Home and Anderson thought it was a hazard to any player who might be propelled out of bounds by momentum or by another player. After discussing several courses of action, they decided that Home would station himself in front of the curb, so he could stop any player who might be heading for it.

Later, during the game, Home was standing in front of the curb when the Central Kitsap team ran a "sweep" play toward his side of the field. As he testified later:

I saw the kid coming to the sideline, I saw the tackler coming and saw imminent collision.

So I backed up to the cement and got my hands out and my body ready in case there was a collision, and sure enough their kid hit my kid....

....

... My kid was a full stride out of bounds and starting a second stride when he was impacted. He was going into the cement. And using both hands, I took him to the ground. And the North Kitsap player with most of his weight came across my left thigh.[ ²

Home was injured, he alleges, as a result of this impact.

In July 1996, Home sued the North Kitsap School District for negligence. North Kitsap moved for summary judgment, contending (1) that it was immune under RCW 4.24.210, the recreational land use statute; (2) that Home was a licensee who could not prove a breach of the duty owed to licensees; and (3) that Home knowingly and voluntarily assumed the risk that culminated in the accident. The trial court granted the motion, and this appeal followed.

I.

North Kitsap argues that RCW 4.24.210 renders it immune from liability to Home. Relying on cases like Bauer v. Minidoka School District 331 ³ and McIntosh v. Omaha Public Schools, ⁴ Home contends the statute does not apply.

The purpose of RCW 4.24.210(1) 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." ⁵ RCW 4.24.210(1) provides in pertinent part:

[A]ny 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, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, hanggliding, paragliding, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

According to Division One, the proper approach when applying this statute is to analyze the purpose for which the landowner was using the land, as opposed to the purpose for which the plaintiff was using the land. ⁶ We agree, although we observe that a landowner may use the land for different purposes at different times. Here, then, it is necessary to focus on the nature of the landowner's use at the time of the accident being litigated. ⁷

A number of other jurisdictions have dealt with the nature of a landowner's use when a school athletic field is sometimes used for school events and other times held open for public use. In Bauer, ⁸ for example, the plaintiff suffered a broken leg when he tripped over sprinkler pipes while playing football on the grounds of the junior high school he attended. The injury occurred in the morning, a few minutes before classes commenced. The district showed that the football game took place before official school hours; that it was not organized or officiated by employees of the district; and that the school grounds were open for public use at other times. The Idaho Supreme Court said:

Here, [plaintiff] was a public school student participating in a game being played at school as the school day was getting underway. [Plaintiff] was not merely a recreational user of the school premises, he was there as a student entitled to the protection of the district.[ ⁹

The court further said:

[Plaintiff] was not the type of recreational user contemplated in the recreational use statute. He was a public school student who came to school early before classes began to play football with his classmates. If he had come to the school grounds to play a game of football that was not organized or sanctioned by the school on a day when school was not in session, we would have no trouble in applying the statute to limit the liability of the district. Nor would we have any difficulty in applying the statute, if he had come to the school grounds on a school day to play a game of football that was not organized or sanctioned by the school before the faculty and other students who were not involved in the game began arriving. The problem we have in applying the recreational use statute to these facts is that [plaintiff] arrived to play football at the very time that the school was beginning its operations for the day, although no classes had begun. He was not just a member of "the public" referred to in the recreational use statute. He was there as a student to begin the school day with a game of football.[ ¹⁰

Although the Idaho court phrased its statements in terms of the plaintiff's use of the field, it could just as easily have said that the school district, at the time of the injury, was using its facility solely for students, and not holding the facility open for use by members of the public. Thus, this case gives guidance here.

In McIntosh v. Omaha Public Schools, ¹¹ for another example, a school-sponsored football game was played on a badly rutted field that apparently was open for public recreational use when the school was not using it. Declining to apply Nebraska's recreational use statute, the Nebraska Supreme Court said:

Clearly, a student participating in a clinic sponsored by his school's athletic program does not fall under the category of recreational use of land open to members of the public without charge. Collin Field, as it pertained to McIntosh, was not open to members of the public without charge. Rather, at the time of McIntosh's injury, the field was open to students who were members or who intended to be members of the Omaha South High School football team.[ ¹²

A number of other cases involve similar fact patterns, and most are at least consistent with Bauer and McIntosh. ¹³ A small number are contrary, but they are unpersuasive, in part because they involve governmental immunity rather than the kind of immunity afforded by RCW 4.24.210. ¹⁴

Turning to this case, a North Kitsap school administrator testified that the North Kitsap field, "including the area used for football games, is available for public use when school is not in session and when it is not being used for a scheduled sport, such as a junior high school football game." ¹⁵ Thus, it is undisputed that North Kitsap was not holding the football field open for use by members of the public when Home was injured, and North Kitsap is not immune by virtue of RCW 4.24.210.

II.

We next consider whether Home was an invitee or licensee. As we explained in Thompson v. Katzer, ¹⁶ "An invitee is either a public invitee or a business visitor." ¹⁷ "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." ¹⁸ "A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with...