Lockner v. Pierce Cnty.

Decision Date19 April 2018
Docket NumberNo. 94643-4,94643-4
CourtWashington Supreme Court
Parties Margie M. LOCKNER, Respondent, v. PIERCE COUNTY and Blair Smith, Petitioners.

Michael Lee Sommerfeld, Pierce County Prosecutors Office, 955 Tacoma Ave. S Ste. 301, Tacoma, WA, 98402-2160, Sean-Michael V. Davis, Washington State Bar Association, 1325 4th Ave. Ste. 600, Seattle, WA, 98101-2539 for Petitioners.

Casey Matthew Arbenz, The Hester Law Group Inc. PS, 1008 Yakima Ave. Ste. 302, Tacoma, WA, 98405-4850 for Respondent.

Duncan McGehee Greene, Jenna Rose Mandell-Rice, Van Ness Feldman LLP, 719 2nd Ave. Ste. 1150, Seattle, WA, 98104-1700, Adam Rosenberg, Williams Kastner & Gibbs PLLC, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, Steven L. Gross, Attorney at Law, 250 Madison St., Port Townsend, WA, 98368-5738, Milton G. Rowland, Foster Pepper PLLC, 618 W Riverside Ave. Ste. 300, Spokane, WA, 99201-5102 for Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

Andy Woo, Washington Attorney General's Office—FWP Div., Fish & Wildlife Parks A.g. Office, Attorney at Law, 1125 Washington St. Se, PO Box 40100, Olympia, WA, 98501-2283 for Amicus Curiae on behalf of State of Washington.

Paul J. Lawrence, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404 for Amicus Curiae on behalf of Washington Association of Land Trusts, Washington Trails Association, Mountaineers, Washington Trust for Historic Preservation, Washington Cattlemen's Association, Evergreen Mountain Bike Alliance, Access Fund, Washington Climbers Coalition, American Whitewater.

Sheila Marie Gall, Association of Washington Cities, 1076 Franklin St. Se, Olympia, WA, 98501-1346 for Amicus Curiae on behalf of Association of Washington Cities.

Terese Neu Richmond, Van Ness Feldman LLP, 719 2nd Ave. Ste. 1150, Seattle, WA, 98104-1700 for Amicus Curiae on behalf of Cascade Water Alliance.

González, J.¶ 1 This case asks us to clarify the scope of Washington's recreational use immunity statute, RCW Margie Lockner was injured when she fell from her bicycle on a trail maintained by Pierce County (County).

Lockner sued the County for negligence. Finding that recreational use immunity precluded her suit because the unintentional injury happened on land open to the public for recreational use without a fee, the trial court dismissed Lockner's claim on summary judgment. The Court of Appeals reversed, mistakenly relying on the dissent in this court's opinion in Camicia v. Howard S. Wright Constr. Co. , 179 Wash.2d 684, 687, 317 P.3d 987 (2014), to hold that a question of fact remained as to whether the trail was open to the public for "solely" recreational use.

¶ 2 ¶ 3 While more than incidental recreational use may be required, sole recreational use is not required before conferring immunity to landowners. In addition, RCW 4.24.210 immunity is not limited to premises liability claims. It also extends to negligence actions. We therefore reverse the Court of Appeals in part and reinstate summary judgment for the County.


¶ 4 On a summer day in 2013, Lockner and her niece went for a bicycle ride on the Foothills Trail. While Lockner rode behind her niece, both cyclists approached a riding lawn mower cutting grass and moving in the same direction beside the trail. As Lockner passed the lawn mower, it allegedly expelled a cloud of dust and debris. Lockner shielded her face and swerved, "clip[ping] her niece's bike." Clerk's Papers (CP) at 3. Lockner fell and injured her knee

and elbow.

¶ 5 The Foothills Trail is a nonmotorized asphalt trail alongside a soft shoulder path for equestrian use. Pierce County's website for the trail describes it as a "popular commuter route and recreational destination for bicyclists." Id. at 62. In its regional plan, the County envisions that its trail system will become a network for recreation, provide "transportation routes," id. at 69, and connect the County to other regional destinations.

¶ 6 Pierce County Parks and Recreation officials have stated that the section of the Foothills Trail where Lockner was injured was designed and maintained for recreational use. This section is open for recreation between 8:00 AM and 5:00 PM.

¶ 7 Lockner filed a negligence suit against the County and its employee, the lawn mower operator. The County moved for summary judgment, arguing that recreational immunity precluded the claim. The trial court granted the County's motion.

¶ 8 Lockner appealed. The Court of Appeals reversed summary judgment, concluding that pursuant to Camicia , recreational use immunity could not be determined as a matter of law because 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 court to examine whether RCW 4.24.210 extends immunity to negligence actions. We granted review of both issues. Lockner v. Pierce County , 189 Wash.2d 1009, 403 P.3d 45 (2017).


¶ 9 We review a grant of summary judgment de novo. Campbell v. Ticor Title Ins. Co. , 166 Wash.2d 466, 470, 209 P.3d 859 (2009). Summary judgment is appropriate 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). When making this determination, we consider all the facts and make all reasonable factual inferences in the light most favorable to the nonmoving party. Young v. Key Pharm., Inc. , 112 Wash.2d 216, 226, 770 P.2d 182 (1989).

I. Recreational Immunity Applies to Pierce County

¶ 10 Lockner urges us to affirm the Court of Appeals. She contends that the court properly applied Camicia to require land to be used for "solely" recreational purposes to obtain immunity. See Lockner , 198 Wash. App. at 912-16, 396 P.3d 389. The County and amici, on the other hand, argue that the Court of Appeals misconstrued Camicia and relied on language from its dissenting opinion—which the majority did not endorse—that RCW 4.24.210 does not mandate "solely" recreational use. Id. (citing 179 Wash.2d at 703-04, 317 P.3d 987 (Madsen, C.J., dissenting) ). The County is correct. For the reasons set forth below, we conclude that neither the plain language of RCW 4.24.210 nor our opinion in Camicia preconditions recreational use immunity on land being used solely for recreational purposes.

¶ 11 This case concerns aspects of the scope of immunity under RCW 4.24.210. Statutory interpretation is a question of law, which we review de novo. State v. J.P. , 149 Wash.2d 444, 449, 69 P.3d 318 (2003). Our starting point is the statute's plain language and ordinary meaning. Id. at 450, 69 P.3d 318. If the statute's plain language is unambiguous, our review is at an end. Id. In construing a statute, our "primary duty ... is to discern and implement the intent of the legislature." Id.

¶ 12 Washington's recreational immunity provision explains in part that

[e]xcept as otherwise provided ... any public or private landowners, hydroelectric project owners, 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 ... without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

RCW 4.24.210 (emphasis added). This provision is meant to encourage landowners to open their land to the public for recreation by limiting their liability toward persons injured or damaged by unintentional acts occurring thereon. RCW 4.24.200 ; see also Cregan v. Fourth Mem'l Church , 175 Wash.2d 279, 283, 285 P.3d 860 (2012). To accomplish this goal, our legislature changed the common law by statute, altering an entrant's status from that of a trespasser, licensee, or invitee to a new statutory classification of recreational user. Davis v. State , 102 Wash. App. 177, 184, 6 P.3d 1191 (2000), aff'd , 144 Wash.2d 612, 30 P.3d 460 (2001).

¶ 13 To qualify for immunity under RCW 4.24.210, the landowner must establish that the land at issue was (1) open to members of the public (2) for recreational purposes and that (3) no fee was charged. Camicia , 179 Wash.2d at 695-96, 317 P.3d 987 (quoting Cregan , 175 Wash.2d at 284, 285 P.3d 860 ).

¶ 14 There is no dispute that the Foothills Trail was open for recreational use without a fee, nor does Lockner dispute that she was a public user. Lockner asserts the only question is whether genuine issues of material fact exist as to whether the trail was open solely for recreational use. But whether "sole" recreational use is required in order for this immunity to apply is a question of law that we review de novo. J.P., 149 Wash.2d at 449, 69 P.3d 318. If RCW 4.24.210 does not require sole recreational use, there is no issue of material fact in dispute. To determine this, we look first to the language of Washington's recreational immunity statute. Id. at 450, 69 P.3d 318.

¶ 15 RCW 4.24.210 explains that any owner who allows the public to use his or her land "for the purposes of outdoor recreation" is free from liability for unintentional injuries sustained on that land. The language of this statute is clear and unambiguous. The provision mentions only outdoor recreation. It does not say that land must be open for "only" recreational purposes. Indeed, it is silent as to whether mixed public uses, that is, recreation and some other public activity, affect immunity. Clearly, mixed public and other uses do not defeat immunity since the legislature amended RCW 4.24.210 to include land used for hydroelectric power plants. LAWS OF 2011, ch. 53, § 1 (extending recreational use immunity to "hydroelectric project owners"); see Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 11, 43 P.3d...

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