In a 5-3 decision, the State Supreme Court affirmed the Court of Appeals that genuine issues of material fact precluded summary judgment on the use of Washington’s recreational immunity statute (former RCW 4.24.210) in Camicia v. Howard S. Wright Constr. Co., No. 85583-8.
Plaintiff Susan Camicia was bicycling along the Interstate-90 trail, crossing over a portion of the trail located on Mercer Island, when she swerved to avoid the defendant construction company’s fence footing protruding onto the pathway. Then Camicia immediately hit a wooden post on the trail, which the City of Mercer Island had placed there to prevent vehicles from using the trail, and was thrown from her bike. Camicia suffered serious injuries and was paralyzed as a result of her fall.
Camicia brought suit against the construction company and the City in King County Superior Court. The City moved for summary judgment, attempting to invoke Washington’s recreational use immunity statute, RCW 4.24.210. This statute protects from liability “‘public or private landowners or others in lawful possession and control of any lands’ who allow the public ‘to use them for the purposes of outdoor recreation,’ without charging a fee.” The first Superior Court judge denied summary judgment, but a second judge granted summary judgment for the City after it provided additional evidence.
The Court of Appeals reversed, holding that disputed factual issues precluded summary judgment. The City petitioned the Supreme Court for review, and the Supreme Court agreed with the Court of Appeals.
“Open for Recreation”
The majority decision, authored by Justice Debra Stephens, first attacks the City’s attempt to use the recreational immunity statute for the I-90 trail. After a lengthy discussion of the history of the history of the trail’s ownership and use, the majority ultimately hones on the purpose for which the trail was “opened.” In this matter, the majority notes that the City of Mercer Island is unable to “open” the trail for recreational purposes, since it was already “open” as a public thoroughfare, and there is a question of material fact as to the City’s ability to “close” the trail. The majority further explained that the immunity can only apply “when a landowner allows the public to use the land ‘for the purposes of outdoor recreation,’” putting directly at issue the landowner’s intent for making the land available for public use in determining whether the immunity may apply.
Amount of Recreational Use and Intent of User Does Not Matter
The majority rejected the notion that the recreational immunity statute may apply “simply because some recreational use occurs,” noting that such an application would “unjustly relieve the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel.” Similarly, the majority also rejected the City’s argument that the user’s intent or use at the time of the incident has any bearing on whether the immunity may apply. The statute’s applicability runs with the purpose for which the landowner made the land available, not with the purpose for which it was being used.
The dissenting opinion, authored by Chief Justice Barbara Madsen and joined by Justices J. Johnson and Alexander (pro tem), claims that the majority’s decision further whittles away the recreational use immunity by allowing plaintiffs to raise factual issues on mixed-use land to avoid summary judgment against them (which is precisely what occurred in Camicia).