Tennyson v. Plum Creek Timber Co., L.P.
| Decision Date | 04 April 1994 |
| Docket Number | No. 32262-1-I,32262-1-I |
| Citation | 73 Wn.App. 550,872 P.2d 524 |
| Parties | Kevin TENNYSON and Tamara Tennyson, husband and wife, Appellants/Cross-Respondents, v. PLUM CREEK TIMBER CO., L.P., a partnership; C. Wyss & Son, Inc., a corporation; Lumsden Logging, Inc., a corporation, and Respondents/Cross-Appellants, Blue Dot Excavating, Inc., a corporation, Respondent. |
| Court | Washington Court of Appeals |
J. Thomas Richardson, Cairncross & Hempelmann, Seattle, Bertil F. Johnson, Davies Pearson, Tacoma, Walter G. Meyer, Meyer & Fluegge; and James S. Berg, Yakima, for respondents.
Kevin Tennyson appeals the trial court's grant of summary judgment in favor of Plum Creek Timber Co., C. Wyss & Son, Inc., Blue Dot Excavating, Inc., and Lumsden Logging, Inc., "the contractors." Tennyson contends that (1) the altered gravel mound was "latent" as a matter of law under RCW 4.24.210, 1 (2) the contractors may not claim immunity under RCW 4.24.210, and (3) the completion and acceptance doctrine does not relieve the contractors from liability. We affirm. 2
On August 4, 1991, Tennyson was injured while riding his off-road motorcycle on land owned by Plum Creek Timber Company. The injuries occurred when Tennyson fell after driving his motorcycle up a large gravel mound that had been substantially excavated on the other side.
Tennyson had ridden his motorcycle on the same mound 14 months before the accident. He alleges that, as he approached the pile from the northwest, it appeared to be in the same condition as earlier. There was still a trail going up the northwest face of the mound. However, when he reached the top of the mound he realized something was different and he attempted to stop. His motorcycle came to a stop at the edge of the drop off, but his front wheel broke through the edge and he tumbled down the hill, receiving serious personal injuries.
In the period between when Tennyson last rode over the mound and the day of the accident, over one-half of the mound had been removed on the southeast side. The result was a sharp drop off from the top of the mound along the southeast side. There were no warning signs at the site; however, the drop off was clearly visible from all other directions except the northwest direction from which Tennyson approached.
We first determine whether the excavation constituted a latent condition, thereby subjecting Plum Creek to liability under RCW 4.24.210.
The recreational land use statute, RCW 4.24.210, limits landowners' liability for injuries occurring on their property. Landowners, however, remain liable for injuries caused by "a known dangerous artificial latent condition". The purpose behind this limitation of liability is to encourage landowners to open their land to the public for recreational use. RCW 4.24.200.
In Van Dinter v. Kennewick, 64 Wash.App. 930, 931, 827 P.2d 329 (1992), aff'd, 121 Wash.2d 38, 44, 846 P.2d 522 (1993) (Van Dinter I ), 3 the appellant was injured by a protruding metal antenna attached to a caterpillar-shaped piece of playground equipment. The appellant did not dispute that the antenna was obvious but argued that the City should have anticipated that "persons using the park in the expected manner--running and playing--would have their attention distracted and would not discover the obvious." Van Dinter I, at 936, 827 P.2d 329.
Analyzing RCW 4.24.210, the court concluded that the landowner (the City of Kennewick) was immune from liability. The court distinguished landowners' liability under the statute from landowners' liability under the common law, stating:
[A]bsent RCW 4.24.210, the landowner is liable for injuries caused by an obvious condition of his land which he should (Italics ours.) Van Dinter I, at 935, 827 P.2d 329. Thus, the court concluded, the statute "immunizes the City from liability for injuries caused by obvious conditions, even if the plaintiff reasonably failed to discover the danger." Van Dinter I, at 936, 827 P.2d 329.
expect the invitee will not discover because of the circumstances surrounding his use of the property. If we were also to interpret RCW 4.24.210 to provide for landowner liability for injuries caused by patent conditions which the owner should expect the user not to discover, we would effectively convert recreational users back to their common law status as public invitees. Such an interpretation would defeat the purpose of RCW 4.24.210[.]
In Van Dinter II, the Supreme Court affirmed the Court of Appeals, using a different analysis. The court determined that the scope of the "condition" for purposes of the statute included the caterpillar's placement in the park--specifically, its proximity to the grassy area, as well as the antenna itself. Van Dinter v. Kennewick (Van Dinter II), 121 Wash.2d 38, 44, 846 P.2d 522 (1993).
The court then addressed Van Dinter's argument that the City should be liable because although the condition itself was patent, the danger it posed was latent. The court rejected this argument, stating that Van Dinter II, at 46, 846 P.2d 522. The court then concluded that although it may not have occurred to Van Dinter that he could injure himself the way he did, the proximity of the caterpillar to the grassy area was obvious and the dangerous condition was therefore not latent. Van Dinter II, at 46, 47, 846 P.2d 522.
In Gaeta v. Seattle City Light, 54 Wash.App. 603, 774 P.2d 1255, review denied, 113 Wash.2d 1020, 781 P.2d 1322 (1989), the appellant was riding his motorcycle on a roadway across the Diablo Dam that had specialized rail tracks on one side. He did not notice the tracks until he was between them. As he tried to steer his motorcycle out from between the tracks, his wheel lodged in a groove next to one of the tracks, and the appellant was injured. Gaeta, at 605-06, 774 P.2d 1255. Despite the fact that the Here, Tennyson claims that the excavation was not obvious to him and that "latency may well depend on the vantage point of the recreational user." Reply Brief of Appellant, at 4. He also argues that this court can affirm the summary judgment only if it concludes that "no reasonable juror could conclude that Kevin Tennyson acted reasonably in riding up the well-marked path on the northwest slope of the gravel mound."
appellant had not noticed the tracks, the court concluded that the tracks were obvious. Gaeta, at 610, 774 P.2d 1255.
We disagree. Under the case law, what a particular recreational user reasonably did or did not see has no bearing on whether a condition is latent. In Van Dinter I, the appellant's primary argument was that the caterpillar's antennae were not apparent to a person using the park in the expected manner, i.e., running and playing. Van Dinter I, 64 Wash.App. at 936, 827 P.2d 329. Rejecting this argument, the court specifically stated that under RCW 4.24.210, landowners should not be held liable for injuries caused by undiscovered patent conditions. Van Dinter I, at 935, 827 P.2d 329. Although in Van Dinter II, the Supreme Court relied on a different analysis and did not reach the arguments addressed in Van Dinter I, the Supreme Court did not disagree with or overrule the Court of Appeals' reasoning.
In addition, in Gaeta, the appellant did not discover the tracks until he was between them. Nonetheless, without concluding that the failure to notice the tracks was unreasonable, the court held that the condition was not latent. Gaeta, 64 Wash.App. at 605, 610, 774 P.2d 1255. Thus, as demonstrated by Van Dinter I and Gaeta, the reasonableness of a particular recreational user's failure to discover a condition has no bearing on whether the condition is latent. We believe that the dispositive question is whether the condition is readily apparent to the general class of recreational users, not whether one user might fail to discover it.
In the present case, the excavation was considerably larger and more conspicuous than either the antennae in Van Dinter I or the tracks in Gaeta. As the trial court noted, the excavation was in plain view and readily apparent to As the Van Dinter I court pointed out, allowing liability "for injuries caused by patent conditions which the owner should expect the user not to discover ... would effectively convert recreational users back to their common law status as public invitees." We believe that under the statute, a landowner is not required to anticipate the various ways that people might use its property, nor is a landowner required to predict possible scenarios in which a user might fail to see a patent condition. Thus, we conclude that the statute relieved Plum Creek from the burden of anticipating that someone might attempt to ride up the mound from the northwest side without examining it. 4 The trial court correctly concluded that the excavation was not a latent condition within the meaning of the statute.
anyone who examined the gravel mound as a whole. The fact that some recreational users, i.e., those who approach from the northwest and ride up the mound without checking the other side, might fail to discover the excavation does not render it latent within the meaning of the statute
We next address whether the trial court erred by applying the immunity of Washington's recreational land use statute to the contractors.
RCW 4.24.210 applies if a person in lawful possession and control of lands allows the public to use them for recreational purposes without charging a fee. Here, the contractors argue that they are entitled to immunity under the statute because they had lawful possession and control of the land at the time the alleged negligent acts occurred. We disagree.
In Labree v. Millville Mfg., Inc., 195 N.J.Super. 575, 481 A.2d 286 (App.Div.1984), a subcontractor and a landowner entered into an...
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