Ravenscroft v. Washington Water Power Co., 15233-2-III

• Decision Date: 21 August 1997
• Docket Number: No. 15233-2-III,15233-2-III
• Citation: 942 P.2d 991,87 Wn.App. 402
• Court: Washington Court of Appeals
• Parties: Robert RAVENSCROFT and Marilyn Ravenscroft, husband and wife, and the marital community comprised thereof; and Kevin M. Ravenscroft, a minor, Respondents and Cross-Petitioners, v. The WASHINGTON WATER POWER COMPANY, a Washington corporation, Petitioner, and County of Spokane, Department of Emergency Services, Respondent and Cross-Petitioner.

Page 402

87 Wn.App. 402

942 P.2d 991

Robert RAVENSCROFT and Marilyn Ravenscroft, husband and wife, and the marital community comprised thereof and Kevin M. Ravenscroft, a minor Respondents and Cross-Petitioners, v. The WASHINGTON WATER POWER COMPANY, a Washington corporation, Petitioner and County of Spokane, Department of Emergency Services Respondent and Cross-Petitioner.

No. 15233-2-III.

Court of Appeals of Washington, Division 3, Panel Five.

Aug. 21, 1997.

Donald G. Stone, Mary M. Palmer, Paine, Hamblen, Coffin, Brooke & Miller, Spokane, for Appellant.

James F. Combo, Coeur d'Alene, ID, Hugh T. Lackie, Amy C. Clemmons, Evans, Craven & Lackie, Spokane, for Respondents.

KURTZ, Judge.

Robert Ravenscroft was injured when the speed boat in which he was a passenger hit a submerged tree stump. The accident occurred on a lake created by a Washington Water Power (WWP) dam and regulated for safety by Spokane County (the County). Mr. Ravenscroft sued WWP and the County. Claiming immunity under the Washington recreational use statute, WWP asked the trial court to dismiss the claim against it. The court denied the motion based upon the exception for a known, dangerous, artificial, and latent condition. We reverse, holding the presence of a dam and submerged tree stumps do not create artificial and latent conditions precluding immunity under the recreational use statute.

The County asked the trial court to dismiss Mr. Ravenscroft's claims based upon the public duty doctrine. The court denied the motion, holding that issues of fact existed regarding whether the legislative intent and failure to enforce exceptions applied. We hold the legislative intent exception does not apply because the relevant safety statutes are primarily aimed at protecting the public and not a special class which included Mr. Ravenscroft. Further, we hold that the failure to enforce exception does not apply for the reason that the relevant statutes lack directives to undertake specific corrective action.

Mr. Ravenscroft asserts a claim against the County as a third party beneficiary to a cooperative agreement between the State of Washington and the County. This agreement provides state funding for boating safety and enforcement programs in exchange for County participation Finally, the trial court dismissed all of Mr. Ravenscroft's common law claims against the County. We agree with the court because the County's duty to recreational users in a state recreational area is defined by the recreational use statute and not by common law principles.

in the programs. The County asked the trial court to dismiss this claim based upon the public duty doctrine. The court denied the motion, holding that there is a question of fact as to whether Mr. Ravenscroft was a third party beneficiary to the contract. We reverse, holding that the claim is barred by the public duty doctrine.

We reverse in part and affirm in part.

FACTS

On June 24, 1990, Robert Ravenscroft was a passenger in a recreational speed boat which hit a submerged, rooted tree stump on an area of the Spokane River, commonly called Long Lake (the Reservoir). When the boat hit the stump, the motor broke from its attachment and struck Mr. Ravenscroft, who subsequently brought suit against Spokane County and WWP.

WWP owns and operates the Spokane River Hydro-Electric Project pursuant to a Federal Power Commission license. The project extends along the Spokane River from Upper Falls Dam to Long Lake Dam. The Nine Miles Falls Dam was transferred to WWP by deed dated June 23, 1925. The deed reflects the transfer of riparian and overflow rights between the Spokane city limits and the mouth of the Little Spokane River downstream from the Nine Mile Dam, which includes the area of Mr. Ravenscroft's accident. The Nine Miles Falls Dam is a "run of the river" facility, meaning that, with high water, water flows over the dam. Overflow naturally occurs into the area of the location of the rooted tree stump involved in Mr. Ravenscroft's accident. The Long Lake Dam was constructed in 1910 and initially had a maximum pool elevation substantially less than the present level. In order to increase Mr. Ravenscroft's accident occurred in an area where trees once stood, bordering the original bank of the Spokane River. When WWP raised the elevation of the Reservoir in 1949, the trees became surrounded by water. Gradually the trees died, but many of the snags remained standing above the water for years. Sometime later, WWP cut down and removed the snags, but they left the stumps. Throughout the boating season, WWP has maintained the level of the Reservoir at 1,536 feet to provide maximum storage for hydroelectric power production. During the summer months when the pool is held at maximum level, the stumps are submerged below the water. WWP makes its project boundaries available for recreational use without a fee, pursuant to its federal license.

power production, WWP has raised the level of the Reservoir over the years.

The area where the accident occurred is within the boundaries of Riverside State Park which is owned and operated by the Washington State Parks and Recreation Commission (State Parks). State Parks has authorized the Spokane County Sheriff's Department, Marine Division, to control the waterways.

The County has patrolled the waterways in Spokane County since the early 1940s to enforce local and state boating regulations. One function of the patrol is to educate and protect the public from unsafe boating conditions they may encounter in Spokane County waterways. To that end, the County has maintained a buoy program dating back to the late 1970s in which it marks State wildlife ramps, regulates boating traffic and marks dangerous hazards in County waterways.

State Parks provides boating safety funds to local agencies and other organizations to enhance their boating safety programs pursuant to the Boating Safety Grants and Contracts Program, WAC 352-64. In return for the grant money, the local entity must, among other things, adhere to the statutory requirements which include patrolling and marking the waterways. WAC 352-65-040(5), (7).

State Parks and the County entered into a cooperative agreement required by WAC 352-64-070(5) which set forth the respective rights and duties of each party. In exchange for the grant money, the County agreed to undertake certain boating safety responsibilities. In particular, the County agreed to patrol the waterways of Spokane County, investigate any unsafe boating conditions, and provide information to the boating public regarding those unsafe conditions. They also agreed to provide boating safety services.

After Mr. Ravenscroft's accident, representatives of the Spokane County Sheriff's Department, Marine Division, State Parks and WWP attempted to obtain a permit from the State to remove the rooted tree stump. The State would not issue the permit because removing the stumps would disrupt the fish and other natural habitat.

Mr. Ravenscroft brought suit against WWP and the County. Both WWP and the County moved for summary judgment alleging they were immune from liability under the recreational use statute, RCW 4.24.210. The County also argued Mr. Ravenscroft's claim was barred by the public duty doctrine.

The trial court refused to apply the recreational use statute to the County because the County was not in lawful possession and control of the premises and thus did not qualify for its immunity. The court found WWP had sufficient possession and control of the area to qualify for the statute's immunity, but held WWP may be liable because through its dams, WWP was able to manipulate the water level of the Reservoir, thus creating an artificial condition. The court also found a question of fact existed as to whether the artificial condition was latent.

The court found the public duty doctrine applicable to the County, but concluded issues of fact existed as to whether the failure to enforce exception and the legislative intent exception applied. In addition, the trial court held an issue of fact existed as to whether Mr. Ravenscroft was a third party beneficiary of the cooperative

agreement between the State and County. The remainder of Mr. Ravenscroft's common law causes against the County including all premise liability theories were dismissed. WWP, the County and Mr. Ravenscroft all raise issues on appeal.

ANALYSIS

Standard of Review. In reviewing a summary judgment order, we engage in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990); Chamberlain v. Department of Transp., 79 Wash.App. 212, 215, 901 P.2d 344 (1995). Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Marincovich, 114 Wash.2d at 274, 787 P.2d 562.

Recreational Use Statute. Washington's recreational use statute, RCW 4.24.200-.210, was enacted to encourage owners of land and water areas to make them available for public recreation by limiting the owner's liability to persons injured while on the property. Tabak v. State, 73 Wash.App. 691, 694-95, 870 P.2d 1014 (1994). A landowner who makes land available for recreational users free of charge cannot be held liable for unintentional injuries to users unless the landowner fails to warn of a (1) known, (2) dangerous, (3) artificial, and (4) latent condition. Tabak, 73 Wash.App. at 695, 870 P.2d 1014. The terms "known," "dangerous," "artificial," and "latent" all modify "condition," not each other. Van Dinter v. City of Kennewick, 121 Wash.2d 38, 46, 846 P.2d 522 (1993).

In ascertaining the meaning of a particular word as used in a statute, a court must consider both the statute's subject matter and the context in which the word is used. State v. Rhodes, 58 Wash.App. 913, 920, 795 P.2d 724 (1990). A term that is not defined in a statute should be given its plain and ordinary...