Lockner v. Pierce Cnty.

Decision Date09 May 2017
Docket NumberNo. 48659-8-II,48659-8-II
Citation198 Wash.App. 907,396 P.3d 389
CourtWashington Court of Appeals
Parties Margie LOCKNER, Appellant, v. PIERCE COUNTY, a political subdivision of the State of Washington; and Blair Smith, individually, and as an employee to Pierce County, Respondents.

Lee, J.¶1 Margie Lockner appeals the superior court's summary judgment dismissal of her claims based on the recreational immunity statute, RCW 4.24.210. Lockner argues that the superior court improperly applied the recreational immunity statute because (1) she provided evidence that the place of her injury was used for transportation purposes and (2) she brought a negligence claim rather than a premises liability claim. This appeal requires us to determine whether Camicia v. Howard S. Wright Constr. Co.1 limits recreational immunity to land opened solely for recreational purposes or whether the immunity extends to those lands serving multiple purposes.

¶2 We hold that summary judgment was improper because Camicia limited recreational immunity to land opened to the public solely for recreational purposes and issues of material fact remain as to whether the area where Lockner was hurt was opened to the public solely for the purpose of recreational use. We also hold that the plain language of availability of RCW 4.24.210 extends to negligence actions. Accordingly, we reverse and remand for further proceedings.


¶3 Lockner and her niece were riding their bicycles on the Foothills Trail in Pierce County. Lockner was riding behind her niece as they approached a riding lawn mower from the rear. The lawn mower, operated by a Pierce County Parks and Recreation employee, was mowing grass on the right side of the trail, moving in the same direction as Lockner and her niece. Lockner's niece rode past the lawn mower, and Lockner followed, attempting to pass with the lawn mower on her right. Lockner raised her left hand from the handle bars to shield her eyes from debris in the air from the lawn mower. She "quickly tried to veer to the left to get off the trail and that's when I clipped [Lockner's niece's] bike." Clerk's Papers (CP) at 76 (Deposition of Lockner). Lockner fell and was hurt.

¶4 The County's website describes the Foothills Trail as:

The Foothills Trail sits atop a historic railroad bed and snakes through the river valley southeast of Tacoma. This 25-mile-long trail is a popular commuter route and recreational destination for bicyclists, while hikers enjoy shorter, more manageable segments of the trail. One of the most scenic sections for the unobstructed views of nearby Mt. Rainier begins in Orting and follows the Carbon River upstream through farmland and forest.
The Foothills Trail is a 12-foot wide non-motorized asphalt trail/linear park suitable for bicycles, walking, in-line skates and wheel chairs. It also has a soft shoulder path for equestrians.

CP at 62 (emphasis added).

¶5 The County produced a "Pierce County Park, Recreation & Open Space Plan," which included a "Regional Trails Plan" that stated its vision as:

The Pierce County Regional Trails System will be an accessible and seamless trails network used by people of all ages and abilities for recreation and transportation . Pierce County trails will provide users with the opportunity to experience recreation , solitude or companionship, and provide a practical transportation option . It will offer connections to major developed areas and attractions within the County, provide opportunities for appreciation of nature, and connect the County to the greater region.

CP at 59, 65-66 (emphasis added).

¶6 Lockner filed suit against the County and the employee operating the lawn mower. The County moved for summary judgment, arguing that RCW 4.24.210 immunized the County from Lockner's claims. In support of the motion, the County filed the declaration of its Superintendent of Parks, which stated that the Foothills Trail "is open to the public for recreation between the hours of 8:00 a.m. and 5:00 p.m.," and the Foothills Trail "is not a transportation corridor." CP at 103. The superior court agreed with the County and dismissed Lockner's suit. Lockner appeals.


¶7 Lockner argues that the superior court erred in dismissing her case against the County on summary judgment because (1) issues of material fact exist as to the trail's use for transportation purposes and (2) the recreational immunity statute applies only to claims for premises liability, not to her claims for negligence. We hold that summary judgment was improper because issues of material fact remain as to whether the Foothills Trail was opened to the public solely for the purpose of recreational use. We also hold Lockner's second argument fails.


¶8 "Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review a grant of summary judgment de novo." Camicia , 179 Wash.2d at 693, 317 P.3d 987.

¶9 In reviewing appeals from summary judgment, we view the facts in the light most favorable to the nonmoving party. Id. at 687-88, 317 P.3d 987. In this case, that party is Lockner.

¶10 Recreational immunity is an affirmative defense. Id. at 693, 317 P.3d 987. Therefore, the burden to establish its application is on the party claiming its protection. Id . In this case, that party is the County.


¶11 Lockner argues that material facts exist to show that the Foothills Trail is not used solely for recreational purposes. Lockner asserts that summary judgment is not proper in this case because our Supreme Court in Camicia held that where the land is held open for mixed-use—such as for both recreation and transportation—then the recreational immunity statute is not available to the landowner. We agree.

¶12 RCW 4.24.210 is the recreational immunity statute. Its purpose

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 short, the recreational immunity statute was enacted to encourage landowners to allow public use of their land for outdoor recreation by providing the landowners with immunity from most injuries that might be sustained through the public's use. RCW 4.24.200 ; LAWS OF 1967, ch. 216 § 2.2 The recreational immunity statute provides, in pertinent part:

[A]ny public or private landowners ... who allow members of the public to use [the land] for the purposes of outdoor recreation, which term includes, but is not limited to, ... bicycling, ... without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

RCW 4.24.210(1). "Thus, ‘to be immune under RCW 4.24.210(1) the landowner must establish that the [land in question] (1) was open to members of the public (2) for recreational purposes and [that] (3) no fee of any kind was charged.’ " Camicia , 179 Wash.2d at 695-96, 317 P.3d 987 (quoting Cregan v. Fourth Mem'l Church , 175 Wash.2d 279, 284, 285 P.3d 860 (2012) ) (alterations in original).

¶13 In Camicia , the plaintiff was riding her bicycle on the I-90 bicycle trail, along Interstate 90 in Mercer Island, when she was injured. Id. at 687, 317 P.3d 987. The plaintiff sued the city of Mercer Island for negligence, but the superior court dismissed the action under RCW 4.24.210. Id . Division One of this court reversed the superior court in an unpublished decision, determining that there was no evidence that the I-90 bicycle trail was intended for anything but transportation and had always been characterized as a part of the regional transportation system. Camicia v. Howard S. Constr. Co. , noted at 158 Wash.App. 1029, 2010 WL 4457351, at *7. Our Supreme Court agreed with the Court of Appeals and affirmed. Camicia , 179 Wash.2d at 687, 317 P.3d 987.

¶14 In affirming, however, our Supreme Court backed away from the position taken by the Court of Appeals, noting instead that the record showed that recreational use of the I-90 trail had been identified at least by the city of Mercer Island. Id. at 689-90, 317 P.3d 987. The record showed that the Washington State Department of Transportation's history of the I-90 trail stated that no recreational facility funds had been used to construct the I-90 trail, and that it was built as " ‘part of a multi-modal transportation facility.’ " Id. at 689, 317 P.3d 987 (quoting the record). Yet, while the quitclaim deed of the I-90 trail to the city of Mercer Island stated that the " ‘property is transferred for road/street purposes only, and no other use shall be made of said property without obtaining prior written approval of the grantor,’ " the city of Mercer Island contended that it always understood the I-90 trail to be primarily recreational in nature. Id. at 690, 317 P.3d 987 (quoting the record) (emphasis omitted). In support, the city of Mercer Island cited to local ordinances, its parks department being charged with the trail's upkeep, and a " ‘Park, Recreation, Open Space, Arts and Trails Plan’ " that identified the I-90 trail as a " ‘multi-purpose pedestrian/bicycle regional trail.... used as park lands.’ " Id. at 689-90, 317 P.3d 987 (quoting the record) (emphasis omitted). The parties agreed that the I-90 trail was open to members of the public and no fee of any kind was charged.

¶15 The Camicia court characterized the issue as "whether genuine issues of material fact exist as to whether the trail was open for recreational purposes." Id. at 696, 317...

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2 cases
  • Schwartz v. King Cnty.
    • United States
    • Washington Court of Appeals
    • October 27, 2020
    ...County's recreational use immunity defense based on the recreational use statute and this court's decision in Lockner v. Pierce County , 198 Wash. App. 907, 396 P.3d 389 (2017), rev'd , 190 Wash.2d 526, 415 P.3d 246 (2018). The County opposed Schwartz's motion, and the court denied it.¶29 A......
  • Lockner v. Pierce Cnty.
    • United States
    • Washington Supreme Court
    • April 19, 2018
    ...there was a disputed issue of material fact as to whether the trail was open "solely" for recreational use. Lockner v. Pierce County , 198 Wash. App. 907, 908, 396 P.3d 389 (2017) (citing Camicia , 179 Wash.2d at 687, 317 P.3d 987 ). The County sought review. Lockner, in turn, asked this co......

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