Lockner v. Pierce County ( 2018 )

This opinion was filed for record
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SUSAN L. CARLSON
SUPREME COURT CLERK
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MARGIE M.LOCKNER,
Respondent,
No. 94643-4
En Banc
PIERCE COUNTY and
BLAIR SMITH,
Petitioners.
Filed
1PR I 9 201B
GonzAlez,J.—This case asks us to clarify the scope of Washington's
recreational use immunity statute, RCW 4.24.210.' Margie Lockner was injured
when she fell from her bicycle on a trail maintained by Pierce County(County).
Lockner sued the County for negligence. Finding that recreational use immunity
precluded her suit because the unintentional injury happened on land open to the
public for recreational use without a fee, the trial court dismissed Lockner's claim
RCW 4.24.210 provides in relevant part that
any public or private landowners, hydroelectric project owners, or others 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.
Lockner v. Pierce County, et al, No. 94643-4
on summary judgment. The Court of Appeals reversed, mistakenly relying on the
dissent in this court's opinion in Camicia v. HowardS. Wright Constr. Co., 179
Wn.2d 684, 687, 317 P.3d 987(2014), to hold that a question of fact remained as
to whether the trail was open to the public for "solely" recreational use.
While more than incidental recreational use may be required, sole
recreational use is not required before conferring immunity to landowners. In
addition, RCW 4.24.210 immunity is not limited to premises liability claims. It
also extends to negligence actions. We therefore reverse the Court of Appeals in
part and reinstate summary judgment for the County.
Background
On a summer day in 2013, Lockner and her niece went for a bicycle ride on
the Foothills Trail. While Lockner rode behind her niece, both cyclists approached
a riding lawn mower cutting grass and moving in the same direction beside the
trail. As Lockner passed the lawn mower, it allegedly expelled a cloud of dust and
debris. Lockner shielded her face and swerved,"clip[ping] her niece's bike,"
Clerk's Papers(CP)at 3. Lockner fell and injured her knee and elbow.
The Foothills Trail is a nonmotorized asphalt trail alongside a soft shoulder
path for equestrian use. Pierce County's website for the trail describes it as a
"popular commuter route and recreational destination for bicyclists." Id. at 62. In
its regional plan, the County envisions that its trail system will become a network
Lockner v. Pierce County, et al, No. 94643-4
for recreation, provide "transportation routes," id. at 69, and connect the County to
other regional destinations.
Pierce County Parks and Recreation officials have stated that the section of
the Foothills Trail where Lockner was injured was designed and maintained for
recreational use. This section is open for recreation between 8:00 AM and 5:00 PM.
Lockner filed a negligence suit against the County and its employee, the
lawn mower operator. The County moved for summary judgment, arguing that
recreational immunity precluded the claim. The trial court granted the County's
motion.
Lockner appealed. The Court of Appeals reversed summary judgment,
concluding that pursuant to Camicia, recreational use immunity could not be
determined as a matter of law because there was a disputed issue of material fact as
to whether the trail was open "solely" for recreational use. Lockner v. Pierce
County, 198 Wn. App. 907, 908, 396 P.3d 389(2017)(citing Camicia, 179 Wn.2d
at 687). The County sought review. Lockner, in turn, asked this court to examine
whether RCW 4.24.210 extends immunity to negligence actions. We granted
review of both issues. Lockner v. Pierce County, 189 Wn.2d 1009,403 P.3d 45(2017).
Lockner v. Pierce County, et al, No. 94643-4
Analysis
We review a grant ofsummary judgment de novo. Campbell v. Ticor Title
Ins. Co., 166 Wn.2d 466, 470, 209 P.3d 859(2009). Summary judgment is
appropriate when there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. CR 56(c). When making this
determination, we consider all the facts and make all reasonable factual inferences
in the light most favorable to the nonmoving party. Young v. Key Pharm., Inc.,
112 Wn.2d 216, 226, 770 P.2d 182(1989).
I. RecreationalImmunity Applies to Pierce County
Lockner urges us to affirm the Court of Appeals. She contends that the court
properly applied Camicia to require land to be used for "solely" recreational
purposes to obtain immunity. See Lockner, 198 Wn. App. at 912-16. The County
and amici, on the other hand, argue that the Court of Appeals misconstrued
Camicia and relied on language from its dissenting opinion—^which the majority
did not endorse—^that RCW 4.24.210 does not mandate "solely" recreational use.
Id.(citing 179 Wn.2d at 703-04(Madsen, C.J., dissenting)). The County is correct.
For the reasons set forth below, we conclude that neither the plain language of
RCW 4.24.210 nor our opinion in Camicia preconditions recreational use
immunity on land being used solely for recreational purposes.
Lockner v. Pierce County, et al. No. 94643-4
This case concerns aspects ofthe scope ofimmunity under RCW 4.24.210.
Statutory interpretation is a question oflaw, which we review de novo. State v.
J.P., 149 Wn.2d 444,449,69 P.3d 318 (2003). Our starting point is the statute's
plain language and ordinary meaning. Id. at 450. Ifthe statute's plain language is
unambiguous, our review is at an end. Id. In construing a statute, our "primary
duty... is to discern and implement the intent ofthe legislature." Id.Washington's recreational immunity provision explains in part that
[e]xcept as otherwise provided ... any public or private landowners,
hydroelectric project owners, or others in lawful possession and control of
any lands whether designated resource, rural, or urban, or water areas or
channels and lands adjacent to such areas or channels, who allow members
of the public to use themfor the purposes ofoutdoor recreation ... without
charging a fee of any kind therefor, shall not be liable for unintentional
injuries to such users.
RCW 4.24.210(emphasis added). This provision is meant to encourage
landowners to open their land to the public for recreation by limiting their liability
toward persons injured or damaged by unintentional acts occurring thereon. RCW
4.24.200; see also Cregan v. Fourth Mem 7 Church, 175 Wn.2d 279, 283, 285 P.3d
860(2012). To accomplish this goal, our legislature changed the common law by
statute, altering an entrant's status from that of a trespasser, licensee, or invitee to a
new statutory classification ofrecreational user. Davis v. State, 102 Wn. App. 177,
184, 6P.3dll91 (2000), 144Wn.2d612,30P.3d460 (2001).
Lockner v. Pierce County, et al. No. 94643-4
To qualify for immunity under RCW 4.24.210, the landowner must establish
that the land at issue was(1)open to members ofthe public(2)for recreational
purposes and that(3)no fee was charged. Camicia, 179 Wn.2d at 695-96 (quoting
Oregon, 175 Wn.2d at 284).
There is no dispute that the Foothills Trail was open for recreational use
without a fee, nor does Lockner dispute that she was a public user. Lockner asserts
the only question is whether genuine issues of material fact exist as to whether the
trail was open solely for recreational use. But whether "sole" recreational use is
required in order for this immunity to apply is a question oflaw that we review de
novo. J.P., 149 Wn.2d at 449. IfRCW 4.24.210 does not require sole recreational
use, there is no issue of material fact in dispute. To determine this, we look first to
the language of Washington's recreational immunity statute. Id. at 450.
RCW 4.24.210 explains that any owner who allows the public to use his or
her land "for the purposes of outdoor recreation" is free from liability for
unintentional injuries sustained on that land. The language ofthis statute is clear
and unambiguous. The provision mentions only outdoor recreation. It does not
say that land must be open for "only" recreational purposes. Indeed, it is silent as
to whether mixed public uses, that is, recreation and some other public activity.
Lockner v. Pierce County, et al., No. 94643-4
affect immunity. Clearly, mixed public and other uses do not defeat immunity
since the legislature amended RCW 4.24.210 to include land used for hydroelectric
power plants. LAWS OF 2011, ch. 53, § 1 (extending recreational use immunity to
"hydroelectric project owners"); see Dep 't ofEcology v. Campbell & Gwinn, LLC,
146 Wn.2d 1, 11, 43 P.3d 4(2002)(reviewing courts derive plain meaning from
the context of the act and related statutes). This court does not subject an
unambiguous statute to statutory construction. Kilian v. Atkinson, 147 Wn.2d 16,
21, 50 P.3d 638(2002)(plurality opinion)(citing State v. Keller, 143 Wn.2d 267,
276, 19 P.3d 1030(2001)). Because RCW 4.24.210 does not restrict recreational
use immunity to land used solely for recreation, this court will not "read into a
statute matters that are not in it." Id. at 21.
We have previously refused to import a limiting construction based on
multiple uses of land into RCW 4.24.210. Interestingly, while Lockner contends
immunity cannot apply unless land is used exclusively for recreation, this court
heard and rejected the reverse argument in McCarver v. Manson Park and
Recreation District, 92 Wn.2d 370, 373, 376, 597 P.2d 1362(1979). In that case,
the plaintiff argued RCW 4.24.210 should be limited to land primarily used for
other purposes but with incidental recreational use. Id. at 377. The McCarver
court declined to impose a limitation "based upon primary and secondary uses
where the legislature did not. Arguments to achieve such a result should
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Lockner v. Pierce County, et al. No. 94643-4
appropriately be addressed to the legislature." Id. The legislature has not amended
RCW 4.24.210 to insert such a limiting construction. City ofFederal Way v.
Koenig, \61 Wn.2d 341, 352, 217 P.3d 1172(2009)("Once a court has construed a
statute, the legislative branch is free to clarify its intent by altering the statute as it
sees fit. If it does not do so, then we presume the legislature is satisfied with the
interpretation." (citation omitted)). The immunity granted by the plain language of
RCW 4.24.210 does not require lands open to the public be used for exclusively
recreational purposes, and, as in McCarver, we should refuse to read into the
statute a limiting construction in the form of"sole recreational use."
Nothing we have said in Camicia contradicts the plain language of RCW
4.24.210. In Camicia, a bicyclist sustained severe injuries while riding along the
Interstate 90 (1-90)trail located in the city of Mercer Island. 179 Wn.2d at 687-88.
The bicyclist brought a negligence suit against the city, which the trial court
dismissed on summary judgment based on recreational immunity. On appeal, this
court determined that summary judgment was improper because there were factual
disputes as to whether the 1-90 trail was open for recreation at all or solely for
transportation purposes. Critical to our holding was a deed transferring ownership
ofthe 1-90 trail to the city. See id. at 690. The deed specifically provided that the
trail could be used for "road/street purposes only" with other uses allowed upon
written approval of the transferrer. Id.(emphasis omitted). Viewed in a light most
Lockner v. Pierce County, et al. No. 94643-4
favorable to the plaintiff, the deed suggested the city could not close the trail to
transportation and a fact finder could infer the trail would be open for
transportation regardless of any recreational use. Id. at 700. Whether the trail
could be used for recreation was a disputed fact that consequently precluded
determining the legal question of whether recreational immunity was applicable.
We remanded the case to the trial court. Our holding in Camicia is clear: where
evidence conflicts regarding whether the land is open for recreational use, the case
must go before a finder of fact. Id. at 700-01. The land in Camicia was used
primarily for transportation. If sole recreational use was required, remand would
have made no sense.
We did not construe ROW 4.24.210 as requiring exclusive recreational use
to confer immunity; indeed, as explained above, the plain language of the statute
does not support such a reading. In light ofthis plain language, immunity is not
extinguished when land is used for other public or private activities in addition to
recreation. See RCW 4.24.210; McCarver,92 Wn.2d at 373; accordRiksem v.
City ofSeattle, 47 Wn. App. 506, 512, 736 P.2d 275(1987)("Land which was
primarily used for recreational purposes having other incidental uses would
certainly apply under[RCW 4.24.210] as well."); Widman v. Johnson, 81 Wn.
App. 110, 114, 912 P.2d 1095 (1996)(evidence established that the land in
question was opened and used for recreation and that therefore the land "may also
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have been used for other purposes (e.g., as a shortcut by nonrecreating members of
the public) lacks legal significance").
Having determined that sole recreational use is not required under RCW
4.24.210, we must now decide whether the Foothills Trail was opened for
recreation. Recreational immunity applies to landowners with "lawful possession
and control" over land. RCW 4.24.210(1). Lawful possession and control means
"'continuing authority to determine whether the land should be open to the
public.'" Camicia, 179 Wn.2d at 696(quoting Tennyson v. Plum Creek Timber
Co., 73 Wn. App. 550, 557-58, 872 P.2d 524 (1994)).^ Whether land has been
opened for recreation is to be viewed from the objective standpoint ofthe
landowner. See Cregan, 175 Wn.2d at 285; Gaeta v. Seattle City Light, 54 Wn.
App. 603, 608,774 P.2d 1255 (1989), abrogated by Jewels v. City ofBellingham,
183 Wn.2d 388, 353 P.3d 204(2015);.see also Camicia, 179 Wn.2d at 701-02(majority), 705-06(Madsen, C.J., dissenting); Howard v. United States, 181 F.3d
1064, 1072-73 (9th Cir. 1999)("to determine whether a landowner will be immune
^ Amid urge us to consider whether "lawful possession and control" under RCW 4.24.210
requires "continuing authority" to close land to the public. See, e.g., Br. of Amici Curiae Wash.
Ass'n of Mun. Att'ys at 14-18; Br. of Amicus Curiae State of Washington at 12-18. Neither
Lockner nor the County asked this court to consider the "authority to close" test, and we did not
grant review ofthis issue. Moreover, it is unnecessary for resolution ofthe issues properly
before the court because the County demonstrated its continuing authority to close the Foothills
Trail to the public. Because the authority to close test is not squarely presented, we decline to
consider it. We leave resolution ofthis issue for another day. See State v. Duncan, 185 Wn.2d
430,435 n.2, 374 P.3d 83(2016)(we generally decline to consider arguments not properly
before us).
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from liability under a recreational use statute, the proper focus is on the
landowner's intent").
Here, the record demonstrates that the County intended and had authority to
open the land in question for recreational purposes. The section of the trail where
Lockner was injured is maintained and operated by the County. The County
exercised its authority to open and close the trail by setting hours for recreation,
from 8 AM to 5 PM. Although the trail is described in one website as a "popular
commuter route and recreational destination," CP at 62, this does not establish that
the County intended the land to be used exclusively for transportation. In fact, the
County presented evidence from its park officials stating that the County operates
and maintains the trail section where Lockner was injured specifically for
recreation. Acknowledging that a recreational area may be used for other
activities, such as walking through a park to get to a jobsite, does not eliminate
immunity.
Based on this evidence, the County intended to open the Foothills Trail for
recreational purposes. Cregan, 175 Wn.2d at 285; Gaeta, 54 Wn. App. at 608. No
genuine issues of material fact remain on that point. Recreational use immunity
therefore applies to the County, and summary judgment was properly granted
below.
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Lockner v. Pierce County, et al. No. 94643-4
11. RCW4.24.210 Includes Negligence Actions
^ The Court of Appeals concluded that RCW 4.24.210 immunizes landowners
from negligence actions. Lockner, 198 Wn. App. at 916. Lockner contends this is
error. She argues that recreational immunity applies only to premises liability
actions and that her claim should be viewed under the common law showing of
duty, breach, causation, and damages. See Answer to Pet. for Review at 13
(explaining Lockner's claim has "nothing to do with the condition ofthe land ....
[A]n agent of Pierce County actively breached the duty of due care and caused her
injury.").^ The plain language of RCW 4.24.210 does not support this narrow
reading.
Because recreational use immunity applies to the County, we must examine
whether RCW 4.24.210 precludes Lockner's negligence action. Landowners
"shall not be liable for unintentional injuries" occurring to public entrants on their
land. RCW 4.24.210. The statute does not define "unintentional," thus we "may
discern the plain meaning of nontechnical statutory terms from their dictionary
definitions." State v. Cooper, 156 Wn.2d 475,480, 128 P.3d 1234(2006)(citing
State V. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232(1992)). "Unintentional"
^ RCW 4.24.210 creates an exception where an injured party may overcome immunity by
showing either(1) a fee for the use ofthe land was charged,(2)the injuries were intentionally
inflicted or (3)the injuries were sustained by reason of a known dangerous artificial latent
condition for which no warning signs were posted. Jewels v. City ofBellingham, 183 Wn.2d
388, 353 P.3d 204(2015). Lockner does not assert any exception to recreational immunity.
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Lockner v. Pierce County, et al, No. 94643-4
is defined as "not intentional," that is, not done by design or purpose. WEBSTER'S
Third New International Dictionary 2499(1979)(defining "unintentional");
id. at 1176 (defining "intentional"). Lockner was injured while reacting to an
alleged cloud of dust and debris expelled from a nearby lawn mower. There is no
evidence that the operator purposefully used the mower to eject debris or somehow
intentionally injure Lockner. This evidence establishes that Lockner sustained
unintentional injuries while engaging in recreational activity on county-maintained
land. The plain language of RCW 4.24.210 extends immunity to this injury. To
hold otherwise would undermine the legislative purpose of recreational use
immunity as it would do little to limit a landowner's liability for the "acts or
omissions" of public users. RCW 4.24.200.
Conclusion
Because neither the plain language ofRCW 4.24.210 nor this court's
holding in Camicia requires land to be held open for sole recreational use, the
Court of Appeals' reversal of summary judgment was improper. The evidence
presented demonstrates that the County intended to open the Foothills Trail for
recreational purposes and no issues of material fact remain. In addition, the Court
of Appeals properly concluded that recreational use immunity includes negligence
actions. Therefore, we reverse the Court of Appeals in part and reinstate summary
judgment for the County.
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Lockner v. Pierce County, et al. No. 94643-4
WE CONCUR:
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7
14
Lockner v. Pierce County, et al.
No. 94643-4
MADSEN,J.(concurring)—agree with the majority that the plain language of
RCW 4.24.210 provides recreational use immunity to Pierce County and note that the
majority's application here comports substantially with the dissent's analysis in Camicia
V. HowardS. Wright Construction Co., 179 Wn.2d 684, 317 P.3d 987(2014), which also
stressed the plain language application of the recreational use immunity statute, RCW
4.24.210. The majority here correctly states,"In light of[RCW 4.24.210's] plain
language, immunity is not extinguished when land is used for other public or private
activities in addition to recreation." Majority at 9. I write separately because I see the
majority as a necessary course correction after Camicia, which I believe will provide
more useful guidance to the courts below. Accordingly, I concur.
No. 94643-4
Madsen, J., concurring