Schwartz v. King Cnty.

• Decision Date: 27 October 2020
• Docket Number: No. 53588-2-II,53588-2-II
• Citation: 14 Wash.App.2d 915,474 P.3d 1092
• Court: Washington Court of Appeals
• Parties: Carl W. SCHWARTZ and Sherry Schwartz, individually and the marital community composed thereof, Appellants, v. KING COUNTY, a local governmental entity and municipal corporation within the state of Washington, Respondent.

14 Wash.App.2d 915

474 P.3d 1092

Carl W. SCHWARTZ and Sherry Schwartz, individually and the marital community composed thereof, Appellants,

v.KING COUNTY, a local governmental entity and municipal corporation within the state of Washington, Respondent.

No. 53588-2-II

Court of Appeals of Washington, Division 2.

Filed October 27, 2020

PUBLISHED OPINION

Melnick, J. ¶1 Carl Schwartz suffered a tragic injury while riding his bicycle. The incident occurred when Schwartz struck a bollard¹ on a trail in a park owned by King County. Schwartz sued the County. The County claimed immunity under the recreational use immunity statute,² and moved for summary judgment. The trial court granted the County's motion.

¶2 Schwartz argues that the County was not entitled to summary judgment based on recreational use immunity because genuine issues of material fact exist. First, he contends that genuine issues of material fact exist as to whether the trail was used predominately for transportation or recreation. Second, he argues that genuine issues of material fact exist as to whether the County had the authority to close the Green River Trail (GRT). Finally, he contends that genuine issues of material fact exist as to whether the County charged a fee to use the trail. In the event we disagree, then Schwartz argues that genuine issues of material fact exist as to whether the known dangerous artificial latent condition exception to recreational use immunity applies. RCW 4.24.210(4)(a).

¶3 We conclude that a genuine issue of material fact exists as to whether the bollard constituted an exception to recreational use immunity as a dangerous condition and as a latent condition. We reverse.

FACTS³

I. INCIDENT

¶4 On March 13, 2017, Schwartz rode his bicycle south on the GRT in Cecil Moses Memorial Park when he struck a bollard. The white bollard was four inches wide and had a red reflector on both the north and south side of it.

¶5 Schwartz, an experienced bicyclist, rode several thousand miles every year. Since 2010, he had ridden on the GRT "a few dozen times or more." Clerk's Papers (CP) at 968. As a result of the accident, Schwartz was rendered a quadriplegic.

II. THE GREEN RIVER TRAIL (GRT)

¶6 The GRT is a 19-mile trail that runs from Cecil Moses Memorial Park in Tukwila to Kent. At the north end of Cecil Moses Memorial Park, adjacent to the trail, a sign titled "Trail Rules" states: "Trail is closed 1/2 hour after sunset and opens 1/2 hour before sunrise." CP at 1018, 1023.

¶7 The GRT is used for both recreational and nonrecreational purposes, including commuting. When the County created the GRT master plan in 1988, it understood that "the trail [would] be used for daily commuting as well as for recreation." CP at 1264.

¶8 Although the County does not own the entire GRT, it does own the portion of the GRT that runs through Cecil Moses Memorial Park. The County acquired ownership of Cecil Moses memorial Park through 14 parcel and road vacations. It did not charge the public a fee to use the park.

III. THE COUNTY'S REGIONAL TRAIL SYSTEM (RTS)

A. Overview

¶9 The GRT is a part of the County's RTS, which consists of 175 miles of trails. The County estimates that pedestrians and bicyclists make approximately 12 million trips on the RTS each year.

¶10 The County manages the RTS as a park facility. The County has also described itself as a "steward[ ]" of the RTS. CP at 178.

¶11 The County originally intended the RTS to serve "as recreational amenities and linear parks." CP at 1441. However, the County also intended the RTS to integrate nonmotorized transportation, including bicycles, into the County's transportation system.

¶12 In 2012, the County published its "Report of the King County Parks Levy Task Force ". CP at 1623. The report stated that the RTS "serves as an increasingly important alternative to traditional means of commuting." CP at 1624-25. But, in the County's 2016 comprehensive plan, it recognized the primary purpose of the RTS continued to be recreation.

¶13 In 2013, Robert Foxworthy, the County's Regional Trails Coordinator, wrote a memorandum regarding how the RTS interacted with the Americans with Disabilities Act of 1990. Foxworthy stated that the RTS's trails are considered shared-use paths, which are "multi-use paths designed primarily for use by bicyclists and pedestrians ... for transportation and recreation purposes." CP at 1662, 1664. Foxworthy also stated that the trails on the RTS are considered public rights-of-way, which are defined as "[p]ublic land acquired for or dedicated to transportation purposes." CP at 1664.

¶14 In the County's 2017 program policies, it stated that "[r]egional trails should be accessible ... for recreation and utility uses such as home-to-work or other ‘commute’ type trips," noting "the importance of the RTS being available when people want or need it—provides for 24 hour use." CP at 2739.

B. Bollards on the RTS

¶15 The County installed bollards, including the bollard that Schwartz struck, to prevent cars from driving onto the trails.

¶16 In 2008, Foxworthy wrote an e-mail stating the County "should begin thinking about painting diamond warning stripes around the bollards on [the County's] paved trails." CP at 1950. In 2009, the County proposed new guidelines that would have required all new bollards to have such markings, but it never implemented them. The Manual on Uniform Traffic Control Devices (MUTCD), issued by the Federal Highway Administration (FHWA), and the American Association of State Highway and Transportation Officials both recommend yellow pavement markings leading up to and around bollards. The MUTCD applies to the GRT where Schwartz was injured.

¶17 The FHWA recognizes that bollards can present hazards: "Even ‘properly’ installed bollards constitute a serious and potentially fatal safety hazard to unwary trail users." CP at 1097. Therefore, "bollards should never be a default treatment, and should not be used unless there is a documented history of intrusion by unauthorized cars, trucks, or other unauthorized vehicles." CP at 1097.

¶18 The County has received complaints from cyclists regarding bollards on the RTS. For example, in 2014, the County received a complaint where the citizen alleged that she had "suffered catastrophic injuries" as a result of striking a bollard that she did not see. CP at 1944. The complaints were not specific to the bollard that Schwartz struck, and the County did not know of any reports of injuries sustained from that specific bollard.

¶19 However, in 2009, someone painted the word "post" and a squiggly line on the asphalt on both approaches to the bollard that Schwartz struck. Stephanie Johnson, a former County parks and recreation employee, stated that she was present when another employee told their boss about the painted words and squiggly lines, but he took no action.

C. Federal Funding

¶20 The Puget Sound Regional Council (PSRC) "is designated under federal law as the Metropolitan Planning Organization (required for receiving federal transportation funds) and under state law as the Regional Transportation Planning Organization for King, Kitsap, Pierce and Snohomish counties." CP at 2466. In 2010, PSRC calculated that it "distribute[d] about $160 million a year to transportation projects." CP at 2466.

¶21 "Since 1991, a major source of funding for acquisition and development of [the] County's regional trails," including the GRT, "has come from the federal appropriation for the national transportation programs." CP at 1290. The County applies to the PSRC to obtain the federal aid in the form of grants. The GRT itself has received two of these grants, and as recently as 2017, the County sought federal transportation funds from PSRC to improve the GRT.

¶22 The PSCR's 2018 "Regional Transportation Plan " included a number of planned or requested projects for the GRT. CP at 2508-11. One project was located near, but not within, Cecil Moses Memorial Park.

¶23 Foxworthy has stated that if the County obtains federal transportation funds, then trails "should be available 24 hours [a day] as a public transportation facility." CP at 2770.

IV. LAWSUIT

¶24 As a result of his injury, Schwartz sued the County alleging, among other claims, negligence. The County argued it had recreational use immunity, RCW 4.24.210.

¶25 During discovery, Schwartz deposed Sam Whitman, the County's Park District Maintenance Coordinator, and Foxworthy.

¶26 Whitman stated that he knew of one occurrence in the previous few years where a race occurred on the GRT. The race was a long-distance bicycle ride that "utilized a portion of the [GRT]." CP at 2843. Whitman said a private group hosted the race and had to have a permit to hold the event. He believed the group had to pay for the permit.

¶27 Foxworthy admitted that the County knew that the public used the RTS at all hours, regardless of the posted hours. He also stated that the County had a long-standing proposal, to be implemented in the future, to keep the RTS open 24 hours a day.

¶28 Schwartz moved to dismiss the County's recreational use immunity defense based on the recreational use statute and this court's decision in Lockner v. Pierce County , 198 Wash. App. 907, 396 P.3d 389 (2017), rev'd , 190 Wash.2d 526, 415 P.3d 246 (2018). The County opposed Schwartz's motion, and the court denied it.

¶29 After the Supreme Court issued Lockner , the County moved for summary judgment. In its brief, the County disputed that the bollard was known, dangerous, artificial, or latent.⁴

¶30 Schwartz opposed the motion. He argued that genuine issues of material fact existed as to whether the County satisfied the recreation use immunity statute and that further issues of fact existed as to whether the known dangerous artificial latent condition exception applied. For support, Schwartz relied on the declarations of Colleen Sheehan, Stephanie Johnson, James Sobek, and Joellen Gill.

¶31 Sheehan, a former employee of the County's Park and Recreation Department,...