Ravenscroft v. Washington Water Power Co., No. 65945-1

• Court: United States State Supreme Court of Washington
• Writing for the Court: GUY; MADSEN; DURHAM, C.J., and TALMADGE
• Citation: 136 Wn.2d 911,969 P.2d 75
• Parties: Robert RAVENSCROFT and Marilyn Ravenscroft, husband and wife; and Kevin M. Ravenscroft, a minor, Petitioners, v. The WASHINGTON WATER POWER CO., a Washington corporation; and County of Spokane, Department of Emergency Services, Respondents.
• Docket Number: No. 65945-1
• Decision Date: 24 December 1998

Page 911

136 Wn.2d 911 969 P.2d 75 Robert RAVENSCROFT and Marilyn Ravenscroft, husband and
wife; and Kevin M. Ravenscroft, a minor, Petitioners,
v.
The WASHINGTON WATER POWER CO., a Washington corporation;
and County of Spokane, Department of Emergency
Services, Respondents. No. 65945-1. Supreme Court of Washington,
En Banc. Dec. 24, 1998.
Reconsideration Denied Feb. 10, 1999.

[969 P.2d 77]

Page 914

Debra Stephens, Gary N. Bloom, Bryan P. Harnetiaux, Spokane, amicus curiae for Washington State Trial Lawyers Ass'n.

James F. Combo, Couer d'Alene, ID, for Petitioners.

Paine, Hamblen, Coffin, Brooke & Miller, Donald G. Stone, Mary M. Palmer; Evans, Craven & Lackie, Hugh T. Lackie, Amy Clemmons, Spokane, for Respondents.

GUY, Justice.

In this case we are asked to decide whether one of several submerged, rooted tree stumps near the middle of a water channel in a dam reservoir is an "artificial" and "latent" condition under the exception to the recreational use statute, and whether the public duty doctrine bars a claim for injuries allegedly caused by a county's failure to warn boaters of submerged tree stumps. We hold that the injury causing condition in this case was one of several submerged tree stumps which the defendant left near the middle of a water channel whose water level

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is controlled by defendant; that this condition is artificial, as a matter of law; and whether this condition is latent is a question for the trier of fact. We also hold that the public duty doctrine bars the plaintiffs' claims against the County. FACTS

On June 24, 1990, Robert Ravenscroft was severely and permanently injured when the boat in which he was riding struck a submerged, rooted tree stump. When the boat hit the stump, the outboard motor broke off from its attachment and flipped into the boat, striking Mr. Ravenscroft on the head and shoulder.

[969 P.2d 78] The accident occurred on an area of the Spokane River, commonly called Long Lake, which was created by the Washington Water Power Company (WWP). Spokane County (County) is responsible for regulating boating safety on the lake. Mr. Ravenscroft ¹ sued both the County and WWP for his injuries.

WWP owns and operates the Spokane River Hydroelectric Project pursuant to a Federal Power Commission license. The license agreement requires WWP to make the project area available for recreational use without charging a fee. The project extends several miles along the Spokane River between Upper Falls Dam and Long Lake Dam and includes Nine Mile Falls Dam. The Long Lake portion of the project consists of a reservoir with a normal pool elevation of 1,536 feet, extending about 24 miles upstream, and having an area of about 5,060 acres.

The Nine Mile Falls Dam is upstream from the area where Mr. Ravenscroft was injured. WWP has owned the Nine Mile Falls Dam since 1925. Nine Mile Falls Dam is a "run of the river" dam, which means that, with high water, water naturally flows over the dam.

Long Lake Dam was constructed in 1910 and initially had a maximum pool elevation of substantially less than its

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present level. In order to increase power production, WWP has raised the level of the Long Lake reservoir over the years. Mr. Ravenscroft's accident occurred in an area where trees once stood, bordering the bank of the Spokane River. When WWP raised the elevation of Long Lake reservoir, the trees became surrounded by water and were near the middle of the water channel. Gradually the trees died, but many of the snags remained, standing above the water for many years. WWP eventually had the trees cut and snags removed but left a number of tree stumps. The stumps cannot lawfully be removed at this time because removal now would disrupt fish and other natural habitat. Throughout the boating season, WWP maintains the level of the reservoir at its maximum of 1,536 feet. When the pool is held at maximum level, the tops of the tree stumps are below the water surface.

On June 24, 1990, the stumps were submerged. The driver of the boat in which Mr. Ravenscroft was a passenger testified by affidavit that he had never been to Long Lake reservoir before the day of the accident. At the Long Lake public boat launch he observed the waterway and noticed the river appeared very wide and calm, although somewhat murky. He saw no floating debris or stumps of any kind in the water near the dock nor in the water downstream toward the main body of Long Lake. He states he saw nothing that would indicate the presence of any submerged objects or hazards in the direction he was traveling. He states he took the same route he saw other boats taking and stayed in the middle of the water channel. As he proceeded downstream, almost in the middle of the channel of water, the boat began to plane. He then heard a loud bang and the motor died. He turned around and saw that the outboard motor had flipped up into the boat.

The area where the accident occurred is within the boundary of Riverside State Park, which is owned and operated by the Washington State Parks and Recreation Commission. The Commission does not manage the waterways which run through the park but, instead, has authorized

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the Marine Division of the Spokane County Sheriff's Department to control the waterways and govern any safety measures applicable to those waterways. The County regulates the waters of all lakes and rivers within Spokane County. The County has been patrolling the waters of the Spokane River, including Long Lake, enforcing safety measures, since the 1940s or '50s. The functions of the County's patrol program include public education about boating safety, and waterway marking by placement of buoys where hazards exist.

One year before Mr. Ravenscroft's accident, in 1989, the State Parks and Recreation Commission and the County entered into a Cooperative Agreement for promoting boating[969 P.2d 79] safety. In applying for participation in the agreement, the County stated that its proposed boating safety program would include placing buoys in hazardous locations and in areas of high boat traffic or potentially high accident/incident areas. No buoy marked the area of the accident on June 24, 1990.

Mr. Ravenscroft filed suit against WWP and the County, alleging negligence and breach of statutory duties on the part of each defendant.

Both defendants moved for summary judgment. WWP and the County each claimed that it was immune from liability under Washington's recreational use statute, RCW 4.24.200-.210. The trial court denied WWP's motion, ruling that the "known dangerous artificial latent condition" exception to recreational use immunity may apply in this case because the condition which injured Mr. Ravenscroft was known, dangerous, and was artificial as a matter of law. The trial court ruled that whether the condition was "latent" was a question of fact for the jury. The trial court also denied the County's motion, ruling that the County was not an owner or entity in lawful possession and control of the property and, therefore, as a matter of law, was not entitled to the protection of the statute.

Spokane County then moved for summary judgment on the basis of the public duty doctrine. The County argued

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that Mr. Ravenscroft's statutory, common law and contract claims against it were barred by the public duty doctrine. This summary judgment motion was granted in part and denied in part. The trial court granted summary judgment of dismissal on Mr. Ravenscroft's premises liability claims, ruling there were no grounds for these claims as the County was not an owner or otherwise in control of the premises. The trial court then denied the motion for summary judgment with respect to the public duty doctrine because it determined issues of fact existed with respect to whether the "failure to enforce" or "legislative intent" exceptions to the doctrine applied. The trial court also determined that an issue of fact existed with respect to whether Mr. Ravenscroft was a third party beneficiary to the Cooperative Agreement between the County and the State Parks and Recreation Commission.

All parties moved for discretionary review in the Court of Appeals. The Court of Appeals reversed the trial court's rulings on the issues relating to the recreational use statute and public duty doctrine, affirmed the trial court's ruling on the premises liability claims, and remanded for dismissal of all of Mr. Ravenscroft's claims. Ravenscroft v. Washington Water Power Co., 87 Wash.App. 402, 942 P.2d 991 (1997), review granted, 134 Wash.2d 1018, 958 P.2d 314 (1998). Mr. Ravenscroft petitioned for review, which this court granted. The Washington State Trial Lawyers Association was permitted to file an amicus brief.

ISSUES

1. Is a submerged, rooted tree stump, located in a channel of water which is part of a dam reservoir, an "artificial" and "latent" condition, as a matter of law, under the recreational use statute?

2. Should this court remand for a determination of whether the County was an owner or possessor of land under the recreational use statute?

3. Does the public duty doctrine bar an action for damages

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for personal injuries allegedly caused by the County's failure to perform water safety duties delineated in a contract with the State? DISCUSSION

In reviewing a summary judgment order, this court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Chamberlain v. Department of Transp., 79 Wash.App. 212, 215, 901 P.2d 344 (1995). A summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996). The facts and all [969 P.2d 80]...