Preston by Preston v. Pierce County, 8251-9-II

• Decision Date: 12 August 1987
• Docket Number: No. 8251-9-II,8251-9-II
• Citation: 741 P.2d 71,48 Wn.App. 887
• Parties: Titus PRESTON, a minor, by Roberta PRESTON, his mother, as Guardian ad Litem, Appellant, v. PIERCE COUNTY, Respondent.
• Court: Washington Court of Appeals

Page 887

48 Wn.App. 887

741 P.2d 71

Titus PRESTON, a minor, by Roberta PRESTON, his mother, as Guardian ad Litem, Appellant, v. PIERCE COUNTY, Respondent.

No. 8251-9-II.

Court of Appeals of Washington Division 2.

Aug. 12, 1987.

Paul Lindenmuth, Michael E. Carroll, Law Offices of Neil J. Hoff, Tacoma, for appellant.

Douglas W. Vanscoy, Deputy Pros. Atty., Tacoma, for respondent.

PETRICH, Judge.

Titus Preston appeals a summary judgment order which dismissed his claim for personal injuries against Pierce County.

The issues on appeal are: (1) whether the trial court erred in granting summary judgment in the County's favor on the ground that the Washington Recreational Land Use Immunity Act. RCW 4.24.200 et seq., applied as a matter of law to bar Preston's claim; and (2) whether a plaintiff who alleges the theory of attractive nuisance in his complaint, but fails to argue the theory in opposition to the defendant's motion for summary Judgment, has preserved that issue for appeal.

We reverse, holding that the trial court erred in granting the County summary judgment because the plaintiff presents material issues of fact with regard to whether the Washington Recreational Land Use Immunity Act, RCW 4.24.200 et seq., applies to bar Preston's claim. Given our disposition of the first issue, we need not reach the second.

On either February 7, 1980, or February 11, 1980, Titus Preston, then age 6 or 7, broke his ankle when his foot slipped into the exposed moving parts of the center section of a merry-go-round. The merry-go-round was located in a park maintained by Pierce County.

Originally, the merry-go-round's moving parts had been covered by a fiberglass dome safety cover. This dome had been removed some time prior to the accident. Two maintenance men who had worked for the County at the time of the accident stated in their affidavits that the merry-go-round's exposed parts were connected to metal which displayed the words "Keep Off." Titus testified that he did not remember whether there had been writing on the merry-go-round.

On May 1, 1980, Preston sued the County. His complaint alleged in part that the merry-go-round constituted an attractive nuisance. On September 19, 1984, the County filed a motion for summary judgment in which it argued that the Washington Recreational Use Statute, RCW 4.24.200 et seq., shielded it from liability. Preston countered that there were material issues of fact with regard to whether the statute applied. Neither party mentioned the doctrine of attractive nuisance at the hearing on the County's motion.

The trial court granted the County's motion on September 28, 1984, and entered a written order on October 12, 1984. Preston now appeals from that order, arguing in part that the merry-go-round constituted an attractive nuisance.

On summary judgment motions, the reviewing court takes the position of the trial court, assuming facts most favorable to the nonmoving party. The burden is on the moving party to prove there is no genuine issue as to a fact which could influence the outcome at trial.

(Citations omitted.) Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985). "[S]ummary judgment is not appropriate when reasonable minds might reach different conclusions." Hartley, 103 Wash.2d at 774, 698 P.2d 77. "If no genuine issue of material fact exists it must then be determined whether the moving party is entitled to judgment as a matter of law." LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975). See also CR 56(c).

The Washington Recreational Use Statute, RCW 4.24.210 shields landowners such as Pierce County ¹ from liability for injuries to persons who use the land for outdoor recreation if: (1) the injury is not intentional; (2) no fee was charged for the land's use; and (3) the injury was not caused by a "known dangerous artificial latent condition for which warning signs have not been conspicuously posted."

Here, as the County notes in its brief, there has been no contention that the County either charged a fee, or intentionally caused Preston's injuries. Therefore, the issue is whether the boy's injuries were caused by a "known dangerous artificial latent condition for which warning signs have not been conspicuously posted."

The only case to interpret this phrase is Morgan v. United States, 709 F.2d 580 (9th Cir.1983). The Morgan Court found that "known" refers to the landowner's mental state while "latent" refers to a condition not readily apparent to the recreational user. Morgan, 709 F.2d at 583. Moreover, Morgan found that the statute contemplates actual, not constructive knowledge to the landowner. We find Morgan's reasoning persuasive. ² Here, the record considered by the trial court contained the following evidence with regard to whether the County "actually knew" of the merry-go-round's condition prior to the accident: (1) Edward Stipes, a maintenance supervisor for the County, testified that he was informed on Monday, February 11, 1980, that the fiberglass cover had been removed, and that he then inspected it and started the process to repair it; (2) Foister Amburgy, another County maintenance worker, contradicted Stipes's testimony and testified that: he, Amburgy, first saw the vandalized merry- go-round while on an inspection with Stipes; he reported the vandalism to his immediate supervisor who told him to fix the merry-go-round 6 to 10 days later; and his inspection with Stipes occurred "concurrent with his first inspection of the property which occurred in February, ... around the 1st or thereabouts, or the 5th or 6th, somewhere in that area"; and (3) the Prestons claim that the accident occurred on February 11, 1980 (although their complaint states February 7, 1980).

Construing the above evidence most favorably to the nonmoving party, Titus Preston, it reasonably can be inferred that the County had actual knowledge of the defect in the first week of February (through Amburgy), and that the accident did not occur until the second week of February, on February 11, 1980.

The parties do not dispute that the merry-go-round was "dangerous" or "artificial." Therefore, the next question is whether the condition was "latent."

Generally, a "latent defect" is one which is "hidden." Black's Law Dictionary, Revised 4th edition, West Publishing Co., St. Paul (1968). Again Morgan finds that "latent" in this context refers to "a condition not readily apparent to the recreational user." Morgan, 709 F.2d at 583. Whether a condition is "latent" or "patent" can present a factual question. See Seattle-First National Bank v. Volkswagen of America, 11 Wash.App. 929, 934, 525 P.2d 286 (1974).

Here, the record presented to the trial court contained the following evidence with regard to whether the merry-go-round's defect was "latent": (1) Titus Preston's mother testified that when the cover was off, the internal area was in plain view; (2) she also testified that she continued to allow her son to play on the merry-go-round despite the missing cover; and (3) Titus Preston testified that he had played on the defective merry-go-round several times before his accident.

Therefore, although the merry-go-round's internal mechanism was clearly visible, indicating a patent condition the evidence...