Jewels v. City of Bellingham

• Decision Date: 11 June 2015
• Docket Number: No. 90319–1.,90319–1.
• Citation: 183 Wash.2d 388,353 P.3d 204
• Court: Washington Supreme Court
• Parties: Steven JEWELS, Petitioner, v. CITY OF BELLINGHAM, Respondent.

183 Wash.2d 388

353 P.3d 204

Steven JEWELS, Petitioner

v.CITY OF BELLINGHAM, Respondent.

No. 90319–1.

Supreme Court of Washington, En Banc.

Argued Jan. 22, 2015.

Decided June 11, 2015.

Crystal Grace Rutherford, Attorney at Law, Ian S. Birk, Benjamin Blystad Gould, Keller Rohrback LLP, Seattle, WA, for Petitioner.

Shane P. Brady, City of Bellingham, Bellingham, WA, for Respondent.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Law Firm PLLC, Ephrata, WA, amicus counsel for Washington State Association for Justice Foundation.

Daniel G. Lloyd, Vancouver City Attorney's Office, Vancouver, WA, Daniel Brian Heid, City of Auburn, Auburn, WA, amicus counsel for Washington State Association of Municipal Attorneys and Association of Washington Cities.

Opinion

JOHNSON, J.

¶ 1 This case involves statutory interpretation of Washington's recreational land use statute, RCW 4.24.210. The plaintiff in this case sued the city of Bellingham for negligence following an injury he sustained when he was thrown from his bicycle after hitting an obstacle in a city-maintained park. Under the statute, landowners who open their property for recreational use free of charge are immune from liability when visitors injure themselves. This statutory immunity does not apply, however, “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(4)(a). The trial court dismissed the plaintiff's claims on summary judgment, and the Court of Appeals affirmed. As we held in Van Dinter v. City of Kennewick, 121 Wash.2d 38, 846 P.2d 522 (1993), and we hold again today, the adjectives “known,” “dangerous,” “artificial,” and “ latent” each modify the term “condition,” not one another. We hold that the Court of Appeals erroneously interpreted the statute by concluding that the plaintiff must show the city of Bellingham knew the condition was dangerous. However, our review of the record supports the trial court's conclusion that the condition in this case was obvious—that is, not latent. We affirm summary judgment in favor of the city of Bellingham.

Facts

¶ 2 Steven Jewels was injured in a bicycle accident while riding in Cornwall Park, which the city of Bellingham (City) maintains. Jewels rode over a speed bump that caused a jolt to his bicycle. As he approached a second speed bump, he attempted to ride around it in order to avoid another jolt. Both speed bumps were painted bright yellow and did not span the entire width of the pathway: there was an unpainted section between the speed bump and the adjacent curb. In his declaration, Jewels asserted that the area between the second speed bump and the curb appeared to him to be “bare, flat pavement.” Clerk's Papers (CP) at 92. Unfortunately, this area was not bare, flat pavement. Instead, the City had installed an unpainted asphalt berm between the second speed bump and the adjacent right-hand curb. This “ water diverter” berm channels water off of the pathway and into a cutout in the right-hand curb. The water diverter is approximately two inches high. In its shape and position, the water diverter is essentially a smaller, lower speed bump that extends from the speed bump proper to the curb cutout.

¶ 3 Jewels rode his bicycle into this area. The unexpected shock from hitting the water diverter forced his front tire into the curb cutout, throwing him from his bicycle and causing him injury. The day after Jewels's accident, the City's parks and recreation department issued a work order directing the water diverter to be painted the same yellow color as the speed bump.

Procedural History

¶ 4 Jewels sued the City for negligence. The City, in turn, asserted the immunity provided to it under Washington's recreational land use statute and moved for summary judgment. Jewels countered, arguing that his claim fell within the statutory exception for injuries caused by “a known dangerous artificial latent condition.” RCW 4.24.210(4)(a). He argued that the City knew about the water diverter (having installed it) and that the water diverter was dangerous, man made, and difficult to see. Jewels introduced declarations from himself and other bicycling experts in support of his argument that areas next to speed bumps are usually flat. The City introduced several photographs of the area where the accident occurred. These photographs were taken after the accident and after the water diverter was painted bright yellow to match the speed bump.

¶ 5 The trial court granted summary judgment in favor of the City. It ruled that Jewels had failed to establish a material issue of fact that the water diverter was latent:

I agree that when it wasn't painted, it wasn't as obvious as the yellow speed bump. Nonetheless, it is two or two and a half inches high apparently. It was within view. Mr. Jewels was—it's not something that he couldn't have seen had he looked, and that is really the standard under this statute. If you can see it, you know it, you should be aware of it.

And so I think that despite Mr. Jewels' unfortunate circumstances, and I think his assumption that he could ride to the side of the, of the speed bump might very well be a good assumption, and I'm not striking the expert opinion, so you know, if they indicate, one of them indicate that is what bicyclists commonly do, and I don't see that as being a problem, but I do think that this bump even if not painted was large enough and wide enough that it was clearly obvious and clearly visible. So it is not a latent condition.

Verbatim Report of Proceedings (July 27, 2012) (VRP) at 18–19.

¶ 6 Secondarily, the trial court concluded that the water diverter was not a “known dangerous condition to the City, because there is no evidence whatsoever that the City knew or should have known or would have known that it was dangerous.” VRP at 19. The trial court denied Jewels's motion for reconsideration, confirming its conclusion that the condition was not latent and that the City did not know the condition was dangerous.

¶ 7 The Court of Appeals affirmed dismissal in a split decision. Jewels v. City of Bellingham, 180 Wash.App. 605, 324 P.3d 700 (2014). The majority of the Court of Appeals reasoned that in order to establish a “known condition” under the recreational use statute, a plaintiff must show that the defendant “also knew that [the condition] was dangerous and latent.” Jewels, 180 Wash.App. at 611, 324 P.3d 700. Concluding that Jewels had failed to show that the City knew the condition was dangerous, the Court of Appeals did not reach the issue of whether the condition was latent. In dissent, Judge Becker argued that the plaintiff must show only that the City knew the injury-causing condition exists in order to overcome the statutory immunity, not that the City knew the condition was dangerous.

Jewels, 180 Wash.App. at 617, 324 P.3d 700. (Becker, J., dissenting). We granted review. Jewels v. City of Bellingham, 181 Wash.2d 1001, 332 P.3d 985 (2014).

Standard of Review

¶ 8 Statutory interpretation is a question of law, which we review de novo. State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007). Our starting point is always the statute's plain language and ordinary meaning. If the language is unambiguous, our review is at an end. But if the language is open to more than one reasonable interpretation, we may apply our recognized canons of statutory construction to arrive at the legislature's intent. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003).

Analysis

¶ 9 Washington's recreational land use statute aims to encourage landowners to open their lands to the public by modifying the common law duty owed to invitees, licensees, and trespassers. Davis v. State, 144 Wash.2d 612, 615–16, 30 P.3d 460 (2001). In relevant part, the statute reads:

(1) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowners ... who allow members of the public to use them for the purposes of outdoor recreation ... without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

....

(4)(a) Nothing in this section shall prevent the liability of 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.

RCW 4.24.210.¹

¶ 10 In short, landowners who open their land to the public for recreational purposes, free of charge, are generally not liable for unintentional injuries to such users. However, the statute creates an exception where an injured party may overcome this immunity by showing either “(1) a fee for the use of the land [was] charged; (2) the injuries were intentionally inflicted; or (3) the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted.” Davis, 144 Wash.2d at 616, 30 P.3d 460 (citing RCW 4.24.210(1), (3) ). Only this last exception is at issue in this case. All four elements (known, dangerous, artificial, latent) must be present in the injury-causing condition for liability to attach to the landowner. Davis, 144 Wash.2d at 616, 30 P.3d 460.

¶ 11 The lack of punctuation in the statute between the terms “known dangerous artificial latent condition” has caused conflicting interpretations in the Court of Appeals, RCW 4.24.210(4)(a). For example, in Gaeta, the Court of Appeals wrote that “[i]n order to constitute a ‘known’ dangerous condition for purposes of the recreational use act, the landowner must have actual as opposed to constructive knowledge that a condition is dangerous.” Gaeta v. Seattle City Light, 54 Wash.App. 603, 609, 774 P.2d 1255 (1989) (citing Morgan v. United States, 709 F.2d 580, 583–84 (9th Cir.1983) ). This analysis would interpret the term “known” as modifying “dangerous,” not “condition.” Other Court of Appeals decisions cited this analysis in...