Washington state court of appeals has affirmed a grant of summary judgment to a school district, which was sued by a citizen who suffered an injury after she fell on the bleachers on her way to use the districts’ running track.
Critical to the panel’s finding was its conclusion that the district has immunity under the state’s recreational use immunity statute.
Plaintiff Elizabeth Olson suffered the injury at Foster High School, a public high school in the Tukwila School District, in April 2012. She visited the high school to use the running track as she had done on many occasions in the past. To get to the track, she took a different route than on prior occasions, one that required her to step down from the bleachers onto the track. Olson did not accurately perceive the rise that separated the bleachers from the track surface, according to the court. As she took the step, she fell and injured her ankle.
Olson sued the district. The district moved for summary judgment. The trial court granted the motion based on RCW 4.24.200-.210, the recreational use immunity statute. This appeal followed.
The aforementioned statute defines circumstances under which a landowner is immune from suit for unintentional injuries to users:
“Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowners … in lawful possession and control of any lands … 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. RCW 4.24.210(1).”
Citing Cregan v. Fourth Mem’l Church, 175 Wn.2d 279, 283-84, 285 P.3d 860 (2012), the court went on to note that “to be immune, the landowner must establish that the use (1) was open to members of the public (2) for recreational purposes and that (3) no fee of any kind was charged. Because recreational use immunity is an affirmative defense, the landowner has the burden of proving it applies.”
Addressing the first point, the court noted that the school district “limits the invitation to use the track in a number of ways that clearly pass muster under Cregan. For example, the track is open to the public only before and after school hours. One posted sign excludes weapons, drugs, alcohol, tobacco, motorized and wheeled vehicles, skateboarding, loitering, and criminal trespass. Another sign, while stating that wheelchairs are allowed, disallows pets (other than service animals), cleated shoes, and food and drink other than water. These restrictions do not, under Cregan, transform the facility into one that is not open to the public.”
After agreeing that use of the facility satisfies Cregan with regard to recreational use, the court turned to “the other disputed element, … whether the district allowed public use without charging ‘a fee of any kind.’ The district did not charge Olson a fee to use the running track.”
The court noted, however, that the district did, however, occasionally charge fees for organizations and groups to use all aspects of the athletic facilities, including the track, artificial turf, announcer, control booth, custodian, field supervisor, police security, and scoreboard. For use of the track only, the district has charged fees on seven occasions in the past five years.
“Olson contends that the charging of fees in these instances precludes immunity. She argues that the district is not immune if any fee was ever charged for use of the athletic facility. She relies on a case from the Oregon State Supreme Court, Coleman v. Oregon Parks & Recreation Department, 347 Or. 94, 217 P.3d 651 (2009). In that case, the plaintiff paid a fee for a campsite in a park. While in the park, he was injured on a bike trail where the public was free to ride. Oregon’s immunity statute applied only if the landowner ‘makes no charge for permission to use the land.’ Former ORS 105.688(2)(a) (2001). The Supreme Court of Oregon denied immunity to the parks department because of the charge to use a campsite. Under Coleman, the landowner is entitled to immunity only if there is no charge for using any part of the land. It makes no difference if the injured person was engaged at the time of the injury in a use for which no fee was charged. Coleman, 347 Or. at 102-03.
“In Washington, on the other hand, a landowner can charge a fee for public use of a portion of its recreational land without necessarily losing immunity for public use of the remainder. Plano v. City of Renton, 103 Wn. App. 910, 914-15, 14 P.3d 871 (2000). The inquiry under our statute is whether landowners allow members of the public to use their lands for recreational purposes ‘without charging a fee of any kind therefor.’ RCW 4.24.210(1).”
In the instant case, the use in question is “an individual’s use of the running track, not an event that commandeered the entire stadium. Occasionally, fees were charged for the use of the track alone by organized groups on scheduled dates, a use that might involve the district in planning, supervision, and cleanup. These fees included rental fees, security fees, custodial fees, utility fees, and administrative fees as would be appropriate. No fee was ever charged to individual members of the public who made unscheduled use of the running track. On the specific facts of this case, the district was not liable for unintentional injuries to ‘such users’ because such use by individual members of the public was always free.”
The court also addressed the plaintiff’s argument that “an injured party may overcome immunity by showing that the injuries were sustained ‘by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.’ RCW 4.24.210(4)(a); Jewels v. City of Bellingham, 183 Wn.2d 388, 390, 353 P.3d 204 (2015).
“ … 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. This is an objective inquiry. Jewels, 183 Wn.2d at 398.
“Olson contends that the condition is latent because the concrete step where her injury occurred blends into the track, making the danger invisible from her perspective as someone coming down from the bleachers. She points out that there were no distinctive markings to call attention to the unexpectedly high drop-off. She admits that a step was expected but argues that she did not expect one so high.”
The court was unmoved.
“There can be no dispute that an ordinary recreational user standing near the concrete step could see it,” it wrote. “Photographs in the record confirm that the change in elevation between the bleachers and the track field would be obvious to the ordinary recreational user. See Jewels, 183 Wn.2d at 400. As a matter of law, the condition was not latent.
“The District has met its burden of showing that the recreational use immunity statute applies. Olson has not presented facts that overcome this immunity. We need not address the District’s alternative argument that summary judgment is appropriate on the basis that the District did not breach its duty.”
Elizabeth Olson v. Tukwila School District; Ct.App.Wash., Div. 1; No. 72865-2-I, 2015 Wash. App. LEXIS 2436; 10/12/15
Attorneys of Record: (for plaintiff) Elizabeth Olson, Appellant, Appearing Pro se, Ellensburg, WA. (for defendant) Mark F. O’Donnell, Preg O Donnell Et Al, Seattle, WA; Earl Maier Sutherland, Preg O’Donnell & Gillett, Seattle, WA; Amber Rae Gundlach, Preg O’Donnell & Gillett, PLLC, Seattle, WA.
