Schwartz v. King County

Decision Date01 September 2022
Docket Number99359-9
Citation516 P.3d 360
Parties Carl W. SCHWARTZ and Sherry Schwartz, individually and the marital community composed thereof, Respondent, v. KING COUNTY, a local government entity and municipal corporation within the State of Washington, Petitioner.
CourtWashington Supreme Court

516 P.3d 360

Carl W. SCHWARTZ and Sherry Schwartz, individually and the marital community composed thereof, Respondent,
v.
KING COUNTY, a local government entity and municipal corporation within the State of Washington, Petitioner.

NO. 99359-9

Supreme Court of Washington.

Argued September 30, 2021
Filed September 1, 2022


Daniel Louis Kinerk, Attorney at Law, 5926 Seward Park Ave. S, Seattle, WA, 98118-3051, Jessica Hardung Kozma, Attorney at Law, 1191 2nd Ave. Ste. 1700, Seattle, WA, 98101-2996, David J. Hackett, King County Administration Building, 1191 2nd Ave. Ste. 1700, Seattle, WA, 98101-2996, for Petitioner.

Christopher Michael Davis, Davis Law Group PS, 2101 4th Ave. Ste. 1030, Seattle, WA, 98121-2317, Philip Albert Talmadge, Aaron Paul Orheim, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, for Respondent.

Robert N. Anderton, Anderton Law Office-Washington Bike Law, 705 2nd Ave. Ste. 1000, Seattle, WA, 98104-1758, for Amicus Curiae Cascade Bicycle Club.

Daniel G. Lloyd, Vancouver City Attorney's Office, P.O. Box 1995, 415 W 6th St., Vancouver, WA, 98668-1995, for Amici Curiae Washington State Association of Municipal Attorneys, and Washington Recreation & Park Association.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis Mcomie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, for Amicus Curiae Wa State Association for Justice Foundation.

Andrew George Cooley, Audrey Meghan Airut Murphy, Sean Mullen Dwyer, Keating Bucklin & McCormack, Inc. P.S., 801 2nd Ave. Ste. 1210, Seattle, WA, 98104-3175, for Amicus Curiae Washington Cities Insurance Authority.

STEPHENS, J.

516 P.3d 362

¶1 Carl Schwartz1 brought this suit against King County (County) for the catastrophic injuries he suffered when he collided with a bollard the County installed on the Green River Trail. The County moved for summary judgment dismissal, arguing that Washington's recreational use immunity statute, RCW 4.24.210, precludes liability and that the statute's exception for known dangerous artificial latent conditions does not apply. The trial court agreed and granted summary judgment for the County. The Court of Appeals disagreed and reversed the summary dismissal.

¶2 We affirm the Court of Appeals. Schwartz has presented evidence showing a genuine issue of material fact as to whether the bollard is a known dangerous artificial latent condition, so the trial court erred by granting summary judgment for the County. We remand to the trial court for further proceedings in light of this contested question of fact.2

FACTS AND PROCEDURAL HISTORY

¶3 In March 2017, Schwartz was grievously injured when he collided with a bollard while riding his bicycle on the Green River Trail (GRT). A "bollard" is a removable metal post designed to prevent motorized vehicles from intruding onto paths and trails. The force of the collision sheared Schwartz's carbon frame bicycle in two and threw Schwartz to the ground headfirst. Despite wearing a helmet, Schwartz suffered a serious injury to his upper spinal cord. Schwartz now lives with quadriplegia and relies on a ventilator to breathe.

¶4 The bollard Schwartz struck is one of hundreds installed by the County on the GRT and other parts of the County's Regional Transportation System (RTS). This particular bollard was placed in the middle of the trail, painted white, and had a small red reflector attached to it. Years before Schwartz's crash, an unknown person or persons used fluorescent paint to write "POST" and other warnings on the pavement near the bollard to caution trail users as they approached. But these conspicuous warnings have since faded.

¶5 On the morning of Schwartz's collision, the weather was wet and overcast. Experts testified by deposition that in those conditions, a normal bicyclist or other trail user likely could not see the bollard as they approached it. Clerk's Papers (CP) at 1067, 1082-83, 1088. One expert detailed how the contrast between the bollard and the pavement of the trail shifted dramatically on overcast days:

In a period of about two minutes the appearance of the bollard went from being dark against a lighter background, through zero contrast and to being light against a dark background. The contrast of the majority of the north exposed surface went to and through zero. This contrast change occurs remarkably fast. As the contrast approached nearly zero ... the bollard was not readily apparent to a normal observer unless you knew from previous experience or memory that a bollard had been installed at this location. These changes occurred several times while I was at the site. I captured the changes on my video coverage.

CP at 1083. The expert concluded that "[t]he bollard hit by Mr. Schwartz was completely

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inconspicuous under the weather and lighting conditions that existed at the scene at the time." CP at 1088.

¶6 A former employee of the County's Parks and Recreation Department agreed with the experts’ conclusions. She recalled that someone had painted the "POST" warning for this bollard during her time at the County, and she testified that this "was the only bollard that [she knew] about that was ever marked by someone to warn users of the bollard's existence." CP at 1117. "This to [her] meant that the bollard was difficult to see by people using that portion of the trail," so she "considered the bollard to be very dangerous to trail users." Id. Despite this incident, the "County did nothing to warn trail users about the bollard" after the painted warnings faded. Id.

¶7 In October 2017, Schwartz filed this suit against the County to recover damages for his injuries. The County argues that because it has opened the GRT to the public for recreational purposes, Washington's recreational use immunity statute bars Schwartz's claims. Schwartz moved for partial summary judgment to strike that defense, and the superior court denied the motion without prejudice pending this court's decision in Lockner v. Pierce County , 190 Wash.2d 526, 415 P.3d 246 (2018). After we issued our decision, the County filed its own motion for summary judgment arguing that the recreational use immunity statute applies and that the statutory exception for known dangerous artificial latent conditions does not. The superior court granted the County's motion, and Schwartz timely appealed.

¶8 A divided panel of the Court of Appeals reversed the superior court's order granting summary judgment of dismissal, holding that Schwartz had established a genuine issue of material fact as to whether the bollard constitutes a known dangerous artificial latent condition. Schwartz v. King County , 14 Wash. App. 2d 915, 941, 474 P.3d 1092 (2020). The County petitioned this court for review, which we granted. We also accepted amici briefs from the Cascade Bicycle Club, the Washington Cities Insurance Authority, the Washington State Association for Justice Foundation, and the Washington State Association of Municipal Attorneys et al.

ANALYSIS

¶9 Summary judgment is appropriate only when a trial would be useless; there must be no genuine issues of material fact and the moving party must be entitled to judgment as a matter of law. CR 56(c). We review a trial court's order granting summary judgment de novo. Lockner , 190 Wash.2d at 530, 415 P.3d 246 (citing Campbell v. Ticor Title Ins. Co ., 166 Wash.2d 466, 470, 209 P.3d 859 (2009) ). When conducting this review, "we consider all the facts and make all reasonable factual inferences in the light most favorable to the nonmoving party." Id. at 530, 415 P.3d 246 (citing Young v. Key Pharm., Inc. , 112 Wash.2d 216, 226, 770 P.2d 182 (1989) ).

¶10 Viewing the evidence in the light most favorable to Schwartz, we conclude that there are genuine issues of material fact as to whether the bollard was a known dangerous artificial latent condition. The County may therefore be liable for Schwartz's injuries under the exception to Washington's recreational use immunity statute. Accordingly, we reverse the trial court's order granting summary judgment and remand for further proceedings.

I. The County Is Not Entitled to Summary Judgment Because Schwartz Has Identified Genuine Issues of Material Fact under the Exception to Washington's Recreational Use Immunity Statute

¶11 Local governments like the County are generally liable for injuries sustained on their property to the same extent as any other landowner. RCW 4.96.010. "At common law, a landowner's duty depended on the plaintiff's status as an invitee, a licensee, or a trespasser." Camicia v. Howard S. Wright Constr. Co. , 179 Wash.2d 684, 694, 317 P.3d 987 (2014) (citing Tincani v. Inland Empire Zoological Soc'y , 124 Wash.2d 121, 128, 875 P.2d 621 (1994) ). In 1966, this court broadened the invitee classification "to include the ‘ "public invitee," ’ defined as one ‘ "invited to enter or remain on land as a member of the

516 P.3d 364

public for a purpose for which the land is held open to the public." ’ " Id. at...

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    • United States
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    • March 6, 2023
    ... ... the nonmoving party.'" Schwartz v. King ... County , 200 Wn.2d 231, 237, 516 P.3d 360 (2022) (quoting ... Lockner v ... ...
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    ... ... 'no fee of any kind [is] charged.'" Hively ... v. Port of Skamania County , 193 Wn.App. 11, 15, 372 P.3d ... 781 (2016) (alteration in original) (internal quotation ... defense, the landowner bears the burden of proving immunity ... applies. Schwartz v. King County , 200 Wn.2d 231, ... 238, 516 P.3d 360 (2022). When the supporting facts are ... ...

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