July/August, 2017
Appeals court weighs in on whether recreational immunity extends to lands serving multiple purposes
by Andrew Bergh

Under Washington’s recreational immunity statute (RCW 4.24.210), landowners who let the public use their property for recreational purposes without charging a fee aren’t liable for unintentional injuries. This immunity extends to both public and private landowners alike.

Three years ago in Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684 (2014), our high court addressed whether property must solely have a recreational purpose in order for recreational immunity to apply. The latest installment on this subject comes to us courtesy of Lockner v. Pierce County, _ Wn. App. _ (2017), which was decided just last month by the Washington Court of Appeals (Division Two).

As its name suggests, Lockner arose from an accident that took place in Pierce County – specifically, on the Foothills Trail, a 25-mile-long trail located southeast of Tacoma.

While riding bicycles on the trail with her niece, Margie Lockner approached a riding lawn mower from the rear. The lawn mower was operated by a Pierce County Parks and Recreation employee who was mowing grass on the right side of the trail. The two bicyclists were riding single file, with Lockner proceeding behind her niece.

The lawn mower projected a lot of flying debris into the air. To shield her eyes from the dust and clippings, Lockner simultaneously raised her left hand from the handle bars and veered to the left using her right hand. Unfortunately, she clipped her niece’s bicycle and took a spill, suffering unspecified injuries.

Although it’s unclear who actually owns the Foothills Trail, the Lockner court noted how a Pierce County website provides further background. As for physical characteristics, the website describes how the Foothills Trail “sits atop a historic railroad bed” and consists of a “12-foot wide non-motorized asphalt trail/linear park suitable for bicycles, walking, in-line skates and wheel chairs.” As for purpose, the website relates how the trail “is a popular commuter route and recreational destination for bicyclists.”

As Division Two also noted, Pierce County elaborates on its “vision” for the county’s “Regional Trails Plan,” which presumably includes the Foothills Trail, in one of its print publications:

Lockner later filed an action for damages against Pierce County and the employee operating the lawn mower. Apparently, the allegations were couched in terms of a simple negligence claim as opposed to a premises liability claim.

Pierce County eventually moved for summary judgment, arguing that the plaintiff’s claim was barred by the recreational immunity statute. In his supporting declaration, the County’s park superintendent averred that the Foothills Trail is open to the public for recreation from 8:00 a.m. to 5:00 p.m. and “is not a transportation corridor.” (So how is a “popular commuter route” qualitatively different from a “transportation corridor”? Good question.)

Siding with the defense, a Pierce County Superior Court judge granted the CR 56 motion and dismissed the plaintiff’s claim. Lockner timely appealed.

Time to switch gears and discuss Camicia, supra, which the Court of Appeals analyzed and quoted from at length.

In Camicia, the plaintiff was injured while riding her bicycle on the bicycle trail alongside I-90 on Mercer Island. The trial court dismissed her action against Mercer Island under the recreational immunity statute. The Court of Appeals (Division One) reversed in an unpublished opinion, holding that RCW 4.24.010 didn’t apply because there was no evidence the I-90 bicycle trial was intended for anything but transportation.

While our high court in Camicia ultimately agreed with Division One that the plaintiff’s claim had been wrongly dismissed by the trial court, it used a different rationale to reach this conclusion. For one thing, after its own de novo review, the majority in Camicia disagreed with the notion that there was no evidence the I-90 bicycle trail was intended for recreational purposes.

According to the justices, the determination of whether the I-90 bicycle trail was intended for recreational purposes rested on two considerations.

The first consideration pertained to whether the landowner could close the land in question to the public. So why is this important? Because the purpose behind the recreational immunity statute – i.e., to encourage landowners to open land that otherwise wouldn’t be open – would not be served if the landowner lacked authority to close the land to the public.

The second consideration relates to whether the land in question was opened to the public solely for the purpose of outdoor recreation. As our high court reasoned in Camicia, it wouldn’t make any sense to immunize the landowner on the basis of recreational use if the land was going to be open to the public even in the absence of that use.

At the end of the day, after taking both considerations into account, the Camicia court concluded that triable issues of fact existed as to whether the I-90 bicycle trail was open for the public purpose of transportation rather than for recreational use – and that Mercer Island’s summary judgment motion had thus been improvidently granted.

Turning to the facts at hand, the Lockner court noted how the Foothills Trail was open to the public with no fee charged for its use. Consequently, for purposes of determining whether immunity was appropriate under RCW 4.24.010, the only remaining issue was whether the Foothills Trail was intended for recreational purposes. This, in turn, triggered a discussion of the two considerations articulated in Camicia.

The first issue, then, was whether Pierce County could “close” the Foothills Trail to the public. In succinct fashion, the Court of Appeals wrapped this up as follows:

As stated by Division Two, the second issue was whether the Foothills Trail was opened to the public solely for the purpose of outdoor recreation. On this point, Pierce County’s own words were its own worst enemy. First, as mentioned above, the County’s website describes the Foothills Trail as “a popular commuter route and recreational destination.” On top of that, its “Regional Trail Plan,” while not specific to the Foothills Trail, discusses how trails should be provided “for recreation and transportation” or “a practical transportation option,” and it also mentions how trails should “offer connections to major developed areas and attractions within the County. . . .and connect the County to the greater region.” In short, when viewing the evidence in the light most favorable to Locker, the Court of Appeals unsurprisingly concluded that issues of material fact existed as to whether the Foothills Trail was opened to the public solely for the purpose of recreational use.

Lockner did lose one minor skirmish, as Division Two rejected her argument that the recreational immunity statute only applies to premises liability claims as opposed to ordinary negligence claims. In terms of the big picture, however, it looks like Lockner will have her day in court.

Not to be forgotten is that RCW 4.24.010 contains an exception for unintentional injuries suffered by recreational users “by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.” Most of the early decisional law interpreting the recreational immunity statute dealt with the meaning and applicability of this exception. As Camicia and now Locker v. Pierce County make plain, however, the starting point of any analysis should be whether RCW 4.24.010 even applies in the first instance. Particularly when an accident takes place on publicly owned lands, plaintiff’s lawyers should examine whether the land in question was opened to the public for purposes of transportation or any other use not relating to recreation.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.