Van Dinter v. City of Kennewick
| Citation | 64 Wn.App. 930,827 P.2d 329 |
| Decision Date | 09 April 1992 |
| Docket Number | No. 11714-6-III,11714-6-III |
| Parties | Duane VAN DINTER, Appellant, v. CITY OF KENNEWICK, Respondent. |
| Court | Court of Appeals of Washington |
David Hevel, Kennewick, for appellant.
William L. Cameron, City Atty., Kennewick, for respondent.
Duane Van Dinter appeals the summary dismissal of his negligence action against the City of Kennewick for injuries he received when he ran into a playground toy located in a city park. We affirm.
On August 4, 1989, Mr. Van Dinter attended a birthday party at Kenneth E. Serier Park in Kennewick. He engaged in a water fight with one of the children present. While chasing the child, he ran along the northern perimeter of a caterpillar shaped climbing toy. Mr. Van Dinter stopped in front of the head of the caterpillar, facing the child. When the child ran off to his left, Mr. Van Dinter moved sideways and struck one of the caterpillar's antennae. The antennae were metal pieces attached to the caterpillar's head at a height of about 5 feet from the ground. They protruded to within 3 to 4 inches of the outside edge of a pebble border area surrounding the toy. Mr. Van Dinter broke his glasses and sustained a serious injury to his right eye. He subsequently instituted this action for damages.
The City moved for summary judgment, contending it was immune under RCW 4.24.210, which provides landowner shall not be liable for unintentional injuries to recreational users unless such injuries are caused by a "known dangerous artificial latent condition ...". The statute reads:
Any public or private landowners or others in lawful possession and control of any lands whether rural or urban ... who allow members of the public to use them for the purposes of outdoor recreation, ... without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users: ... Provided further, That nothing in this section shall prevent the liability of such a landowner or others in lawful possession and control for injuries sustained by users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted: ... 1
(Italics ours.) The City argued that the danger of running into the protruding metal antennae was obvious, not latent.
In Mr. Van Dinter's affidavit in opposition to the City's motion for summary judgment, he stated that prior to the accident he noticed the toy and the border which surrounded it. However, he paid no attention to the details of construction or the size and configuration of the border. He continued:
I felt that as long as I was on the grass, I was safe from the pieces of playground equipment that were within borders. I did not realize that there was a hazard that someone on the grass could collide with the equipment.
....
... I felt the grass area was safe from such hazards, and I did not leave the grass area of the park and enter the caterpillar's border area until the very moment that I struck the caterpillar's antenna with my right eye.
Mr. Van Dinter submitted a copy of specifications for installation of the caterpillar, provided by its manufacturer. Those specifications state the height of the toy is 7 feet, 3 inches, when installed. The height of the toy here measured 5 feet. The specifications further state: "A maximum depth of 12"' of well-maintained loose surfacing should be placed under all equipment, extending at least six feet in all directions surrounding equipment." The record also contains a copy of the guidelines published by the Consumer Product Safety Commission, which recommends an 8-foot border. The border here extended only 3 to 4 inches beyond the end of the antennae.
The court entered an order of summary judgment in favor of the City. The dispositive issue on appeal is whether the caterpillar presented a "latent" condition, as that term is used in the statutory exception to the landowner immunity provided for in RCW 4.24.210. 2
In arguing the condition here was latent, Mr. Van Dinter relies upon Preston v. Pierce Cy., 48 Wash.App. 887, 888, 741 P.2d 71 (1987). There, a 6-year-old boy broke his ankle when his foot slipped into the exposed moving parts of the center section of a merry-go-round located at a county park. The parts had been covered with a fiberglass dome, and maintenance workers testified they were aware the cover had been removed and had started the process to repair it. Preston at 891-92, 741 P.2d 71. The court held at pages 892-93: "[A]lthough the merry-go-round's internal mechanism was clearly visible, indicating a patent condition, the evidence suggests that its injury causing aspects were not readily apparent or were 'latent' to both Titus Preston, the recreational user, and his mother." Consequently, the County was not immune from liability under RCW 4.24.210.
The City maintains the caterpillar constituted a patent condition, relying upon Gaeta v. Seattle City Light, 54 Wash.App. 603, 774 P.2d 1255, review denied, 113 Wash.2d 1020, 781 P.2d 1322 (1989). In Gaeta, the plaintiff was injured while crossing the Diablo Dam on his motorcycle. On the east side of the roadway atop the dam are parallel tracks, approximately 5 feet apart. The tracks are utilized by "mules", which are devices for raising the floodgates. Each track has a groove adjacent to it approximately 2 1/2 inches wide, which allows the wheels of the mule to run along the track. The plaintiff did not notice the tracks until he found himself between them. He became apprehensive because the tracks were slippery, and decided to get back onto the road. In doing so, he jammed his motorcycle wheel into the groove, fell, and sustained personal injuries.
Gaeta agreed with Preston that a "latent" condition is one which is not readily apparent to the recreational user. Gaeta, 54 Wash.App. at 609, 774 P.2d 1255. However, the court criticized Preston's holding that although the merry-go-round's internal mechanism was clearly visible, "its injury causing aspects" were not readily apparent and were therefore latent. Gaeta at 610, 774 P.2d 1255. According to Gaeta, . Gaeta at 610, 774 P.2d 1255. Gaeta held at page 610, 774 P.2d 1255 that since the tracks were obvious, they were not a latent condition. 3
We agree with Gaeta that the term "latent", as used in RCW 4.24.210, refers to the condition itself. We base our decision on the purpose and history of RCW 4.24.210, which indicate the Legislature intended to relieve landowners of liability for injuries caused by an obvious condition, even if the injury causing aspects of the condition were not recognized by the user.
Specifically, RCW 4.24.210 was enacted against the background of the common law. Morgan v. United States, 709 F.2d 580, 583 (9th Cir.1983). The statute changed the common law by altering an entrant's status from that of a trespasser, licensee, or invitee to a new statutory classification of recreational user. Morgan. The Legislature's purpose in changing the entrant's status was " 'to encourage owners ... to make [land] available to the public for recreational purposes by limiting their liability toward persons entering thereon ...' ". Morgan at 583 (quoting RCW 4.24.200).
Under the common law, Mr. Van Dinter would have been classified as a public invitee. See McKinnon v. Washington Fed. Sav. & Loan Ass'n, 68 Wash.2d 644, 414 P.2d 773 (1966). While a landowner generally is not liable to invitees for harms caused by conditions whose dangers are known and obvious, a different result obtains if the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts § 343A, at 218 (1965). 4 "[R]eason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious ...". Restatement (Second) of Torts § 343A, comment f, at 220. Thus, absent RCW 4.24.210, the landowner is liable for injuries caused by an obvious condition of his land which he should 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 to increase the availability of recreational land by limiting the landowner's tort liability.
Here, the metal antennae protruding from the caterpillar's head were obvious. Mr. Van Dinter does not contend the antennae could not be seen, or that they blended into their surroundings. What he contends is thatthe 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. Under the common law, the City might be liable for...
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