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Washington Appeals Court Addresses Recreational Use Immunity in Personal Injury Case

In a recent case, the Court of Appeals of Washington reviewed a personal injury claim brought by a park visitor against the Port of Skamania County.   In Hively v. Port of Skamania County (Wash. Ct. App. Apr. 4, 2016), the plaintiff was visiting one of the Port’s parks, Teo Park, when he tripped and fell on an asphalt path on the way to the restroom. The plaintiff brought suit against the Port for negligence.  The Port moved for summary judgment on the ground that it was entitled to recreational use immunity, and the trial court granted the motion. The plaintiff appealed the trial court’s decision to the appellate court.premises liability

In Washington, there is a statutory exception to common law invitee premises liability, known as recreational use immunity. The purpose is to encourage landowners and those in lawful possession of land to make it available to the public for recreational purposes by limiting their liability. To be immune, the landowner must prove that the property is open to members of the public for recreational purposes and that no fee of any kind is charged.

In Hively v. Port of Skamania, the plaintiff conceded the first and second elements but argued that the Port charges a fee to cruise ships to dock and to parties who wish to exclusively rent Teo Park. On appeal, the court explained that a landowner may charge a fee to use part of its land but maintain immunity for the recreational use of the remainder of the land. However, the fee cannot be one charged for using the land or water area where the injury occurred. As a result, a landowner is not entitled to immunity when the place where the injury occurred is a necessary and vital part of the fee-generating area.

In Hively, the Port did not charge a fee for the public use of either the path upon which the plaintiff fell or the restroom to which the path led. The court found no evidence that the path where the injury occurred was constructed specifically for the purpose of providing access to the fee-generating areas. Accordingly, the court affirmed the lower court’s ruling on the matter.

Finally, the appeals court agreed that landowners owe a duty to public invitees to warn of known, dangerous, artificial, latent conditions, despite recreational use immunity. That inquiry focuses on whether the condition itself is readily apparent to recreational users, rather than the specific risk it poses. However, in Hively, the Port had no knowledge of anyone tripping on the path before the plaintiff’s lawsuit. Furthermore, the court noted that the plaintiff did not present any evidence that the pothole was not readily apparent, or that it was otherwise covered or hidden. The court therefore found that summary judgment was properly granted as to the plaintiff’s argument regarding an alleged latent condition.

Obtaining experienced and capable legal counsel can be crucial to succeed in a negligence claim. The personal injury lawyers at Blair & Kim, PLLC provide qualified and trusted legal representation to accident victims in Washington, as well as people in criminal and family law cases. To discuss your injury case with one of our skilled attorneys, contact our office at (206) 622-6562 or online.

More Blog Posts:

Washington Court Discusses Parental Immunity and Proportionate Liability in Personal Injury Appeal, Seattle Attorneys Blog, published April 20, 2016

Washington Supreme Court Finds in Favor of Plaintiff in Injury Claim Against King County, Seattle Attorneys Blog, published March 29, 2016