Riksem v. City of Seattle, 16188-1-I

• Decision Date: 23 February 1987
• Docket Number: No. 16188-1-I,16188-1-I
• Citation: 736 P.2d 275,47 Wn.App. 506
• Parties: Anton RIKSEM, Appellant, v. CITY OF SEATTLE, Respondent.
• Court: Washington Court of Appeals

Page 506

47 Wn.App. 506

736 P.2d 275

Anton RIKSEM, Appellant, v. CITY OF SEATTLE, Respondent.

No. 16188-1-I.

Court of Appeals of Washington,

Division 1.

Feb. 23, 1987.

Publication Ordered April 30, 1987.

Review Denied July 1, 1987.

Jan Eric Peterson, Peterson, Bracelin, Young, Putra Fletcher, Inc., P.S., Paul Dracher, Gibbs, Douglas, Theiler & Dracher, Seattle, for Anton Riksem.

J. Roger Nowell, Asst. City Atty., Seattle, for City of Seattle.

JOHN A. SCHULTHEIS, Judge Pro Tem. ^*

Anton Riksem (Riksem) appeals from the dismissal of his complaint on summary judgment, assigning error to the trial court's finding that his suit against the City of Seattle (City) is barred by RCW 4.24.210 (Recreational Use Statute) and that the statute is not violative of the State and Federal Constitutions.

FACTS

On a sunny warm Monday, June 11, 1979, Anton Riksem, an experienced cyclist and sometime racer, cycled the entire 12 1/2 mile length of the Burke-Gilman Trail. Once he reached the northern terminus of the trail he turned around to return to his truck which was located 12 1/2 miles away at the southern terminus, Gasworks Park. As he was cycling the trail, Riksem came up behind another cyclist traveling in the same direction but traveling slower than he was. Riksem decided to pass and moved to his left to accomplish this task. However, a jogger was coming from the opposite direction, so he retreated and pulled in behind the other cyclist once again. He then steered to the right and accelerated to pass the other cyclist on the far right hand side of the trail, to the right of the other cyclist. As he did this, he was in a racing position. ¹ When Riksem looked up there was a jogger directly in front of him. Immediately, a collision between Riksem and Silas Wild, the jogger, occurred resulting in considerable injury to both. At the time of the collision Riksem estimated, and was estimated by others, to be traveling at a rate of approximately 12-14 miles per hour.

Riksem sued the City of Seattle for personal injuries sustained in the collision on the Burke-Gilman Trail. Riksem asserts the City negligently and recklessly designed, constructed, maintained and operated the Burke-Gilman Trail by failing to provide adequate signs, trail markings or any traffic control and allowing multiple vehicular and pedestrian uses without such devices, controls, markings, rules or regulations.

The trial court granted the City's motion for summary judgment. Riksem appeals.

Standard of Review.

When reviewing summary judgments the appellate court "engages in the same inquiry as the trial court." Hartley v. State, 103 Wash.2d 768, 698 P.2d 77 (1985). In determining whether a genuine issue exists to any material fact, "the court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the non-moving party." Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

Does the Washington Recreational Use Statute, RCW 4.24.210

, shield the City from liability?

Pertinent parts of RCW 4.24.200 and .210 are as follows:

4.24.200 Liability of owners or others in possession of land and water areas for injuries to recreation users--Purpose. The purpose of RCW 4.24.200 and 4.24.210 is to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of person entering thereon. [1969 ex.s c 24 § 1; 1967 c 216 § 1.]

4.24.210 Liability of owners or others in possession of land and water areas for injuries to recreation users--Limitation. Any public or private landowners or others in lawful possession and control of any lands whether rural or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, ... hiking, bicycling, the riding of horses or other animals, ... nature study, ... viewing or enjoying historical, archeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users: Provided ... That nothing in this section shall prevent the liability of such a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted: ...

Riksem contends the statute does not limit the City's liability on a mixed use trail for five reasons. These reasons are: (1) the statute must be read in conjunction with other statutes, (2) the City did not "open up" property not otherwise available for recreational use, (3) the statute violates public policy, (4) the City knew of the existence of a dangerous artificial latent condition (5) the City's conduct was willful and/or wanton. We do not agree.

The purpose of the statute is the encouragement and the impetus to the private and public landowner to make his/its land available for public recreational purposes. This is done by limiting the land owners liability with limited exceptions. These exceptions are: (1) when a fee is charged; (2) when injuries are intentionally caused; (3) when injuries are sustained "by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted." (RCW 4.24.210.) See McCarver v. Manson Park and Recreation Dist., 92 Wash.2d 370, 597 P.2d 1362 (1979); and Ochampaugh v. City of Seattle, 91 Wash.2d 514, 588 P.2d 1351 (1979).

The contention of Riksem that the statute should not apply, or at least be read in pari materia with, and superceded by, other Washington statutes governing trails and paths is not correct.

The emphasis of the "trails and paths" statute, (RCW 47.30.005 et seq.), is on the establishment and planning for new trails and paths, providing funding, and preserving them once they have been constructed. The statute is silent concerning the liability of landowners who own the trails and paths. The doctrine of in pari materia speaks when there are more than one legislative enactment which could apply. If possible, both statutes should be interpreted to give meaning and effect to each. Davis v. King County, 77 Wash.2d 930, 468 P.2d 679 (1970). The two statutes are complimentary and as such should be given the weight to which they are entitled.

Riksem is arguing that a successor in interest is not entitled to the immunity of the Recreational Use Statute as he is not fulfilling the stated purpose of encouraging the opening of new lands for recreational use. The statute clearly states it is an encouragement for owners/possessors in control of land to make them available to the public for recreational purposes by the limiting of their liability. It would not make sense to provide immunity to only those owners who originally open up the land for recreational purposes. In Washington "[a] statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one of which will carry out and the other defeat the manifest object, it should receive the former construction." Roza Irrigation Dist. v. State, 80 Wash.2d 633, 637-638, 497 P.2d 166 (1972). See also Power v. Union Pacific Railroad Co., 655 F.2d 1380, 1387 (9th Cir.1981). The manifest object of the Recreational Use Statute is to provide free recreational areas to the public on land and in water areas that might not otherwise be open to the public.

A statute is not subject to an objection on a ground that it contravenes public policy. When the legislature enacts the statute it becomes public policy. A statute cannot be judicially declared invalid unless it clearly is in conflict or violative of the State or Federal Constitution. Clark v. Dwyer, 56 Wash.2d 425, 353 P.2d 941 (1960); Gruen v. State Tax Commission, 35 Wash.2d 1, 211 P.2d 651 (1949). See also English v. Marin Water District, 66 Cal.App.3d 725, 136 Cal.Rptr. 224, 227-228 (1977). Public policy is left up to the state legislature.

Riksem's contention that the failure to sign the trail proximately caused his injuries is also misplaced. As here, the facts in Power v. Union Pacific Railroad Co., 655 F.2d 1380 (9th Cir.1981) indicate the injury resulted from an activity, not from a condition of the land. In Power, the Circuit Court reasoned, ...