Natalicheva v. City of Redmond

• Decision Date: 28 March 2022
• Docket Number: 82329-9-I
• Court: Washington Court of Appeals
• Parties: SVETLANA NATALICHEVA and GREGORY GRIDIN, and the marital community composed thereof, Appellants, v. CITY OF REDMOND, a Washington Municipal Corporation, Respondent.

SVETLANA NATALICHEVA and GREGORY GRIDIN, and the marital community composed thereof, Appellants, v. CITY OF REDMOND, a Washington Municipal Corporation, Respondent.

No. 82329-9-I

Court of Appeals of Washington, Division 1

March 28, 2022

UNPUBLISHED OPINION

HAZELRIGG, J.

Svetlana Natalicheva appeals from an order granting summary judgment dismissal of her negligence claim against the City of Redmond. She argues the court erred in finding the City was entitled to recreational use immunity under RCW 4.24.200 and .210. Because Natalicheva fails to raise a material issue of fact as to the artificial condition exception to statutory immunity, dismissal was proper.

FACTS

In August 2017, Svetlana Natalicheva sustained life-altering injuries at Idylwood Park in Redmond, Washington after a tree limb fell over 80 feet and struck her. Natalicheva and a friend were in the park sitting in the shade under a tree as their children swam in a nearby lake when Natalicheva was knocked unconscious by the branch and suffered numerous serious injuries such that she effectively lost the use of her left arm. She sued the City of Redmond (City) for negligence alleging the City knew the cottonwood trees at Idylwood Park posed a risk of "sudden limb drop" (SLD), a condition where otherwise healthy trees lose their branches without warning.^[1] The City moved for summary judgment seeking dismissal of the claim under the recreational use immunity authorized by RCW 4.24.200, .210. The City also moved to strike portions of Natalicheva's expert witness declarations as too attenuated from their fields of expertise. The trial court granted the motion to strike and the motion for summary judgment dismissal. Natalicheva timely appealed.

ANALYSIS

I. Summary Judgment Standard and Recreational Use Immunity

This court reviews a decision on summary judgment de novo, conducting the same inquiry as the trial court. Schwartz v. King County, 14 Wn.App. 2d 915, 926, 474 P.3d 1092 (2020). "'We consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party.'" Id. (quoting Rublee v. Carrier Corp., 192 Wn.2d 190, 199, 428 P.3d 1207 (2018)). If, based on the record, "there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law," summary judgment is proper. Swinehart v. City of Spokane, 145 Wn.App. 836, 844, 187 P.3d 345 (2008).

RCW 4.24.200 and .210 provide statutory immunity for "landowners who open their land to the public for recreational purposes, free of charge." Jewels v. City of Bellingham, 183 Wn.2d 388, 395, 353 P.3d 204 (2015). The statutes aim to "encourage landowners to open their lands to the public for recreational purposes." Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001) (citing RCW 4.24.200).

Natalicheva correctly notes in her opening brief that the recreational use immunity is an affirmative defense. See Camicia v. Howard S. Wright Const. Co., 179 Wn.2d 684, 696-97, 317 P.3d 987 (2014). As an affirmative defense, the landowner must demonstrate that the land: "'(1) was open to members of the public (2) for recreational purposes and [that] (3) no fee of any kind was charged.'" Id. at 695-96 (alterations in original) (quoting Cregan v. Fourth Mem'l Church, 175 Wn.2d 279, 284, 285 P.3d 860 (2012)). Once the landowner has made this showing, they are entitled to immunity. Jewels, 183 Wn.2d at 395. However, an injured party "'may overcome this immunity by showing'" an exception applies, including where an individual is injured "'by reason of a known dangerous artificial latent condition for which no warning signs were posted.'" Id. (quoting Davis, 144 Wn.2d at 616). Natalicheva argues because recreational use immunity is an affirmative defense, the landowner bears the burden to show the exception does not apply. This is contrary to our case law. Natalicheva does not contest that the statute applies, therefore under Jewels, she bears the burden to demonstrate the artificial condition exception applies.

Our courts "have consistently held that the four terms: 'known,' 'dangerous,' artificial,' and 'latent' modify the term 'condition,' not one another." Swinehart, 145 Wn.App. at 845 (quoting Van Dinter v. City of Kennewick, 121 Wn.2d 38, 46, 846 P.2d 522 (1993)). The injury-causing condition, therefore must be known, dangerous, artificial, and latent. Id. "If one of the four elements is not present, a claim cannot survive summary judgment." Davis, 144 Wn.2d at 616. Natalicheva does not argue the recreational use immunity statute does not apply, but rather focuses on the application of the exception. The City does not argue the condition is not dangerous, concentrating its analysis on the other three elements (known, artificial, and latent).

II. Known Dangerous Artificial Latent Condition

Natalicheva first argues the trial court erred by analyzing the injury-causing condition as the falling tree limb "in isolation" from the area underneath the tree ("target zone"), which is maintained by the City. The "target zone" or "target area" was defined by an arborist employed by the City as describing the physical space underneath the canopy of a tree where a tree limb might land if it fell. Natalicheva argued before the trial court that by altering the grass area beneath a cottonwood tree, the City "invited" individuals to sit in this "target zone" where a falling tree branch might land. She contends the injury-causing condition should be viewed as the cottonwood tree susceptible to SLD and the area underneath the tree maintained by the City because the artificially altered grassy area is an external circumstance causally related to her injury.

In analyzing the artificial condition exception to recreational use immunity, the court's first step "is to identify the injury-causing condition." Swinehart, 145 Wn.App. at 845. Because we view all facts and reasonable inferences in the light most favorable to the nonmoving party, the court "must adopt" the nonmoving party's "view of the injury-causing condition" if it is supported by facts in the record. See Id. at 846. Our state Supreme Court has held "[t]he condition is the specific object or instrumentality that caused the injury, viewed in relation to other external circumstances in which the instrumentality is situated or operates." Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 921, 969 P.2d 75 (1998). For example, in Ravenscroft the injury-causing condition was not simply trees in their natural state, but trees cut down to stumps viewed in relation to "the water channel and the water level." Id. This was because the landowner there had not only cut down the trees, leaving the stumps behind, but also artificially raised the water level such that the stumps were not immediately visible to anyone using the waterway. Id. at 923. In Swinehart, Division III of this court found the injury-causing condition was the exit of a slide "as it rest[ed] on a bed of wood chips." 145 Wn.App. at 846. In Van Dinter, the injury-causing condition was a caterpillar-shaped piece of playground equipment and its placement, "rather than the caterpillar as viewed in isolation." 121 Wn.2d at 44.

Here, Natalicheva argues the injury-causing condition is not the cottonwood tree "viewed in isolation," but "the target zone where falling limbs can injure park patrons" in relation to the grassy area maintained by the City. In her response in opposition to the City's motion for summary judgment, Natalicheva argued the City's maintenance of the grassy area underneath the tree acted as a "lure" which "invites the unsuspecting public" into danger. Our state Supreme Court analyzed a similar argument in Davis, where tire tracks leading up to a natural drop-off were not "so closely related as to create a single artificial condition," distinguishing the case from the court's earlier decision in Ravenscroft, 144 Wn.2d at 617, 618. The Davis court stated "the artificial condition in Ravenscroft was unique," because the artificial external circumstance "completely altered the natural condition of that object," such that "[t]he two conditions could not reasonably be analyzed as independent circumstances." Id. at 618. This close relationship between the injury-causing condition "and an artificial external circumstance [like the one found in Ravenscroft] is rare." Id. In contrast, the tracks leading to the drop-off in Davis had a more attenuated relationship because "the drop-off itself remained in its natural state." Id. at 619. Had the plaintiff "walked up to the drop-off following a set of artificial tire tracks, he still would have encountered the drop-off in its natural condition." Id.

Natalicheva attempts to distinguish Davis by arguing the "recreational area and the target zone cannot be encountered independently." While we must adopt the nonmoving party's definition of the condition, we are not bound to a definition unsupported by facts in the record or a reasonable inference. Even viewing the evidence in the light most favorable to Natalicheva, it is not reasonable to define the condition as the maintained grassy area in the "target zone" and the tree. The "specific object or instrumentality that caused the injury" was the cottonwood limb that succumbed to SLD and fell, striking Natalicheva. See Ravenscroft, 136 Wn.2d at 921. Had the City not maintained the area underneath the tree Natalicheva still could have walked underneath the tree susceptible to SLD in its natural state. The artificial "lure" of a grassy area, like the tire tracks in Davis, was not so closely related to the natural condition as to become one artificial condition. The relationship is so attenuated that this question may be determined as a...