Partridge v. City of Seattle

• Decision Date: 31 August 1987
• Docket Number: No. 17221-2-I,17221-2-I
• Citation: 49 Wn.App. 211,741 P.2d 1039
• Court: Washington Court of Appeals
• Parties: Cy PARTRIDGE, Appellant, v. CITY OF SEATTLE, Respondent.

Page 211

49 Wn.App. 211

741 P.2d 1039

Cy PARTRIDGE, Appellant, v. CITY OF SEATTLE, Respondent.

No. 17221-2-I.

Court of Appeals of Washington Division 1.

Aug. 31, 1987.

Stephen P. Schnautz, Bangs, Castle, Schnautz & Hilfer, P.S., Seattle, for appellant Cy Partridge.

Douglas N. Jewett, City Atty., J. Roger Nowell, Asst. Atty. Gen., Seattle, for respondent The City of Seattle.

GROSSE, Judge.

Cy Partridge appeals an order granting summary judgment in favor of the City of Seattle, and an order denying a motion for reconsideration. We affirm.

In 1980, Partridge was permanently paralyzed as a result of a diving accident which occurred in a location just outside the public swimming area at Matthews Beach Park, a city park. Partridge filed suit against the City of Seattle (City) to recover damages for his injuries. The City moved for summary judgment arguing that RCW 4.24.210 ¹ barred Partridge's claim.

First, Partridge contends that RCW 4.24.210 should not apply to immunize the City where the City has acted affirmatively to improve the beach and adjoining lake area with public funds and invites, rather than allows, recreational use. Partridge essentially reraises the issue addressed in McCarver v. Manson Park & Rec. Dist., 92 Wash.2d 370, 597 P.2d 1362 (1979), and would have us narrowly construe the statute to immunize only those landowners, public or private, who merely allow recreational use of unimproved land or water areas. This we cannot do. McCarver v. Manson Park & Rec. Dist., supra, and the more recent Riksem v. Seattle, 47 Wash.App. 506, 511, 736 P.2d 275 (1987), are dispositive.

McCarver involved an accident which occurred at a beach (Manson Park) on Lake Chelan open to the public for swimming. The swimming area had a U-shaped dock and diving platform. Manson Park also supplied lifeguard services 6 days per week. The parties stipulated: (1) that the area was a "water area" encompassed by RCW 4.24.210; (2) Manson Park allowed the public to use the area for outdoor recreation "without charging a fee"; (3) the plaintiff's injuries were unintentional; and (4) the diving tower did not constitute a "known dangerous artificial latent condition." Also, the court found undisputed that the plaintiff was engaged in recreational activity when the accident occurred. The McCarvers argued that the 1972 amendment to RCW 4.24.210, which redefined the class of immunized landowners to include public as well as private landowners, should be construed to limit liability of public landowners to only the purposes set forth in the amendatory statute, all-terrain vehicle (ATV) and snowmobiling activities, not other recreational activities. The Supreme Court disposed of that argument as follows:

Where the language of a statute is clear and unambiguous, there is no room for judicial construction. Snow's Mobile Homes, Inc. v. Morgan, 80 Wash.2d 283, 288, 494 P.2d 216 (1972). RCW 4.24.210 draws no distinctions between public and private landowners, vis-a-vis the designated recreational activities. The placement of the 1972 amendatory language ("public or private") before the term "landowners" encompasses all outdoor recreational activities subsequently delineated. If the legislature intended the liability limitations to apply to public owners only as to incidents arising from the use of ATV and snowmobiles, it should have used more precise language to establish such an intent. See Department of Fisheries v. Chelan County PUD 1, 91 Wash.2d 378, 588 P.2d 1146 (1979). Clearly, the statute, as amended, includes public landowners and occupiers within the recreational use immunity from liability.

McCarver, 92 Wash.2d at 376, 597 P.2d 1362. The McCarvers further argued that the statute should not apply to land or water areas available exclusively for recreational purposes, but rather to land primarily used for other purposes, but with incidental recreational uses. In response, the court stated:

Finally, appellants assert that the statute was not intended to apply to land or water areas available exclusively for recreational purposes. They argue that in light of the statutory purpose, the scope of the act should be limited to land primarily used for other purposes, but with incidental recreational uses. Thus, they reason when Manson Park affirmatively invites the public to use the park exclusively for recreational purposes, it falls outside the scope of the liability limiting statute.

In the instant case, the parties stipulated that the accident occurred in a "water area." We decline to impose a limiting construction upon the statute differentiating land classifications based upon primary and secondary uses where the legislature did not. Arguments to achieve such a result should appropriately be addressed to the legislature.

McCarver, at 377, 597 P.2d 1362.

Partridge attempts to distinguish the case at bar from McCarver first by the fact that McCarver was decided upon stipulated facts whereas here the facts are not agreed to; and, second, Manson Park "allowed" the public to use the beach area whereas here, the City did more than "allow" public use, it undertook action to improve the land with public funds and "invited" public use. We find these distinctions meritless. Whether the facts are agreed to or found to be undisputed as in a summary judgment is irrelevant. Further, Riksem v. Seattle, supra, held that RCW 4.24.210 barred a suit against the City of Seattle for injuries sustained in a bicycle-jogger accident which occurred on the Burke-Gilman Trail, a former railroad track which was converted (improved) by the City to an asphalt trail for walkers, joggers, and bicyclists. Riksem makes clear that the statute applies to any landowner whose land is made available for public use. The City is immune from tort liability for Partridge's injuries unless the City knew of a dangerous artificial latent condition.

On the issue of knowledge, Partridge argues that summary judgment was improper because the pleadings and affidavits created an issue of fact as to whether the City had knowledge of the pilings beneath the water at the time of the accident in 1980. Because RCW 4.24 does not define knowledge, we must decide whether RCW 4.24.210 requires actual or constructive knowledge in its use of the term "known dangerous artificial latent condition".

In construing the language of a statute, words are to be given their plain and ordinary meaning unless a contrary intent appears. Hewson Constr., Inc. v. Reintree Corp., 101 Wash.2d 819, 826, 685 P.2d 1062 (1984). Further, the construction of a statute is to be harmonious with its stated purpose. Service Employees Int'l, Local 6 v. Superintendent of Public Instruction, 104 Wash.2d 344, 705 P.2d 776 (1985). Webster's Third New International Dictionary 1252 (1981) defines "know" as to have acquaintance or familiarity with through experience or acquisition of information; to have cognizance, consciousness, or awareness of something. The language of the statute itself suggests that actual knowledge is required. Moreover, at common law, a landowner owed a recreational user/public invitee a...