Kucher v. Pierce County

• Decision Date: 17 September 1979
• Docket Number: No. 7092-I,7092-I
• Citation: 600 P.2d 683,24 Wn.App. 281
• Parties: John KUCHER, Appellant, v. COUNTY OF PIERCE, Metropolitan Park District of Tacoma, and City of Tacoma, Respondents.
• Court: Washington Court of Appeals

Page 281

24 Wn.App. 281

600 P.2d 683

John KUCHER, Appellant, v. COUNTY OF PIERCE, Metropolitan Park District of Tacoma, and City of Tacoma, Respondents.

No. 7092-I.

Court of Appeals of Washington, Division 1.

Sept. 17, 1979.

Trethewey, Brink, Rossi, Todd & Clayton, Daniel Brink, Robert O'Callahan, Seattle, for appellant.

Davies, Pearson, Anderson, Seinfeld, Gadbow, Hayes & Johnson, Wayne J. Davies, Tacoma, for respondents.

RINGOLD, Judge.

This is an action for personal injury sustained when the plaintiff John Kucher, while using a rope swing located in an area inside the City of Tacoma, ¹ fell from the swing down a hillside, sustaining injuries. On the While owned mostly by the Tacoma Metropolitan Park District (Park District) the land in a steeply sloped wooded area in northern Tacoma, known generally as Puget Park and administered by the Park District, comprises also parcels owned by the City of Tacoma and by Pierce County. The City, whose holdings are limited to some unimproved street right of ways, maintains those right of ways, but the County exercises no ownership rights, and generally conveys land it acquires in the area to the Park District. Aside from some trail improvements made by the City and a picnic area, Puget Park is largely unimproved, but is maintained and inspected by the Park District.

basis of the landowner immunity statute ² and the doctrine of assumption of risk, the trial court granted the defendants' motion for summary judgment and dismissed the action. This appeal followed.

Whenever it learns of them the Park District as a matter of policy removes rope swings because of their hazardous nature. Kucher fell from such a swing attached to the limb of a tree in the gulch area, a portion of the park owned by Two issues are presented for our consideration:

the County. A stick about 2 feet long and 2 inches in diameter tied onto the end of the rope to form a seat broke under Kucher's weight. Lacking the strength to hold himself onto the rope, he slipped off the end into the gulch and sustained a broken back, rendering him a paraplegic.

(1) Is the landowner immunity statute, RCW 4.24.210 (The Act) applicable so as to shield the defendants from possible liability for Kucher's injuries?

(2) Does the doctrine of assumption of risk in any event support the judgment of dismissal?

We answer both questions in the negative and reverse.

IMMUNITY STATUTE

The general rule to follow has been well stated in Strenge v. Clarke, 89 Wash.2d 23, 29, 569 P.2d 60, 63 (1977):

(T)he fundamental object of statutory interpretation is to ascertain and give effect to the intent of the legislature. In so doing, first consideration is given to the context and subject matter of the statute itself. Moreover, legislative intent is to be ascertained from the statutory text as a whole, interpreted in terms of the general object and purpose of the legislation.

Citing a definition of the word "forest" in a different statute, Kucher urges that the term should not be read so expansively as to include the area in Puget Park but should be construed to refer only to rural forest lands. The defendants rejoin that Puget Park is certainly a forest in the commonly understood meaning of the word "forest." To be decided here, then, is the meaning of the word "forest" as used in the landowner immunity statute, a question of statutory construction and legislative intent.

The proper construction of a word in a statute can be derived from an interpretation given that word in other statutes, provided other statutes are in pari materia with the statute being construed. Whitehead v. Department of Social & Health Serv., 92 Wash.2d 265, 267, 595 P.2d 926 (1979). The statutory definition of "forest land" upon which Kucher relies appears in RCW 84.33.100, a statute The listing in the Act of kinds of land to which the immunity extends can only be understood as a limitation upon the scope of the coverage of the Act. When the statute was being considered in the Senate the following exchange took place: ³

dealing with taxation of property. Taxation of property, however, is not in pari materia with tort liability of landowners; the term "forest land" might mean something quite different in a taxation statute from its meaning in a tort context. Thus, the statutes are not in pari materia and the definition of "forest lands" at RCW 84.33.100 is of little moment in resolving the meaning of the term in RCW 4.24.210.

Senator Woodall:

"Mr. President, would Senator Dore yield to a question now: 'Senator Dore, we don't normally contemplate renting apartment houses for recreational purposes, do we?'

Senator Dore:

"You don't represent my district!"

Debate ensued.

Senator Stender:

"Mr. President, would Senator Uhlman yield to a question:

"Senator Uhlman, I notice that the amendment from the Senate Judiciary Committee strikes out most of the House bill. When I read the House bill it seems to be pretty broad in its coverage and I was wondering what purpose was there in striking out the House bill and then putting in this short amendment?" Senator Uhlman:

"Just precisely that: The House bill changes the whole tort concept as Senator Dore pointed out, and the Senate amendment limits it to just what the original proponents of the bill intended and that was just to cover agricultural and forest land. . . ."

Senate Journal, Fortieth Legislature (1967) at 875-76. From this interchange it is fair to deduce that the words "agricultural and forest" were meant to limit the scope of coverage of the Act, and that the legislature intended that there be room left for the application of the common law of premises liability as to those kinds of land, such as urban residential properties, not covered by the Act. Additionally, this interchange demonstrates legislative awareness that the Act impinges upon the common law; the inclusion of the words "agricultural and forest" was intended to limit that impingement. Of course, any statute in derogation of the common law must be strictly construed. Marble v. Clein, 55 Wash.2d 315, 318, 347 P.2d 830 (1959); See also Boileau v. De Cecco, 125 N.J.Super. 263, 310 A.2d 497 (1973).

Starting from the premise that the scope of the immunity must be narrow, we then turn to an examination of the meaning of the words "agricultural and forest" as they appear in the Act. The rule of noscuitur a sociis teaches that the meaning of a word in a statute may be determined by reference to its association with other words or phrases. 2A, C. Sands, Sutherland Statutory Construction § 47.16 (4th ed. 1973); Cf. Lenhoff v. Birch Bay Real Estate Co., 22 Wash.App. 70, 79, 587 P.2d 1087 (1978). The Act provides that the immunity extend to "agricultural and forest lands . . . and rural lands adjacent to such areas . . . ." The use of the word "rural" in describing land adjacent to "agricultural or forest" lands indicates the legislature conceived such agricultural and forest lands covered by the statute to be themselves rural in character, and that the term "rural" need not have been included before the phrase "agricultural and forest" because such terms themselves refer to lands of a rural character. Also, the use Even more persuasive of the legislature's concept of the meaning of the words "agricultural or forest" in the Act is the amendment to the Act made by the 1979 legislature. The following excerpt indicates material changes enacted:

of the word "agricultural," a word of distinctively rural connotation, in a parallel with the word "forest" further corroborates the notion that the word "forest" refers to rural lands.

Any public or private landowners or others in lawful possession and control of ((Agricultural forest)) Any lands Whether rural or urban, or water areas or channels, and ((Rural)) lands adjacent to such areas or channelS, who allow members of the public to use them for the purposes of outdoor recreation . . . shall not be liable for unintentional injuries to such users.

Laws of 1979, ch. 53, p. 236. A change in legislative intent is presumed when a material change is made in a statute. Strunk v. State Farm Auto Ins. Co., 90 Wash.2d 210, 213-14, 580 P.2d 622 (1978). The legislature struck out the words "agricultural or forest" and substituted the word "any," included the phrase "whether rural or urban," and struck out the word "rural." The legislature must have understood the statute as worded before the amendment Not to cover urban areas, but only rural forest and agricultural lands. Had the legislature not so read the statute, the 1979 amendment would have been unnecessary to broaden the scope of the immunity. ⁴

The Oregon Supreme Court was confronted with the issue requiring construction of the word "agricultural" in Oregon's similar statute, ORS 105.655. In Tijerina v. Cornelius Christian Church, 273 Or. 58, 539 P.2d 634 (1975), the Oregon Supreme Court had considered whether a (T)he legislature intended by the restrictive definition of land in ORS 105.655(2) to limit its application to landholdings which tended to have recreational value but not be susceptible to adequate policing or correction of dangerous conditions. The restrictive definition was introduced by amendment to a proposed grant of immunity to owners of all land opened to recreation with the express purpose of avoiding a grant of immunity...