Jewels v. City of Bellingham , 180 Wash. App. 605 ( 2014 )

Leach, J.

¶1 Steven Jewels appeals trial court orders granting summary judgment to the city of Bellingham (City) under the recreational land use statute, RCW 4.24-.210, and denying his motion for reconsideration. Jewels claims that the unpainted extension of a speed bump that he hit while riding his bicycle was a “known dangerous artificial latent condition” under the statute. Because Jewels fails to show that the City had actual knowledge of the injury-causing condition, we affirm.

PACTS

¶2 Cornwall Park is a park open to the public for recreational use without charge. The City owns and maintains the park. On June 30, 2008, while riding his bicycle on a road located in Cornwall Park, Steven Jewels rode over a speed bump at a velocity sufficient to dislodge his water bottle. As he approached a second speed bump, instead of slowing for it, he attempted to ride around it. As he did this, he encountered an asphalt berm, one to two inches high, that was connected to the second speed bump. The asphalt berm (also known as a water diverter) channels water into a cutout portion of the curb, facilitating drainage off the road. On the date of the accident, the asphalt berm was black: darker in color than the road itself but unpainted. When Jewels tried to bypass the speed bump by going through what he believed was a gap between the speed bump and the curb, the force of the front tire hitting the berm caused him to lose control of his front wheel, which caught in the cutout portion of the curb. This sudden stop threw Jewels from his bicycle and onto the asphalt and curb, broke his front wheel, and caused him injury.

¶3 On April 12, 2011, Jewels filed a complaint for personal injuries and damages against the City. The City moved for summary judgment, claiming immunity under the recreational land use statute. The superior court granted the City’s motion for summary judgment, finding that the water diverter did not create a known, dangerous, latent condition. On August 24, 2012, the court denied Jewels’s motion for reconsideration.

¶4 Jewels appeals.

STANDARD OF REVIEW

¶5 This court reviews an order of summary judgment de novo, performing the same inquiry as the trial court.¹

ANALYSIS

¶6 Jewels argues that the City cannot claim immunity under the recreational land use statute because the water diverter was a “known dangerous artificial latent condition for which warning signs have not been conspicuously posted.”² To establish a landowner’s liability under this statute, a plaintiff must show that each of the four elements — known, dangerous, artificial, and latent — was present in the injury-causing condition.³ “If one of the four elements is not present, a claim cannot survive summary judgment.”⁴ Jewels claims that the injury-causing condition was “clearly latent and deceptive and falls squarely within the statutory exception.”

¶7 The Washington Legislature enacted the recreational land use statute in 1967 to encourage private and public landowners to open recreation areas to the public without fear of liability for unintentional injuries.⁵ This statute “changed the common law by altering an entrant’s status from that of a trespasser, licensee, or invitee to a new statutory classification of recreational user.”⁶ This court construes this statute strictly.⁷

¶8 RCW 4.24.210(1) states,

[A]ny 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, which term includes, but is not limited to, . . . bicycling . . . without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

“This statute gives landowners immunity from liability unless (1) a fee is charged, (2) the injury inflicted was intentional, or (3) the injury was caused by a known dangerous artificial latent condition and no warning signs were posted.”⁸ Jewels bicycled as a recreational user through Cornwall Park, a public park that charges no fee. Therefore, RCW 4.24.210, not the common law, controls here.

¶9 Washington courts have construed this statute to require that a plaintiff establish actual knowledge, as opposed to constructive knowledge, that a condition is dangerous.⁹ A plaintiff must “ ‘come forward with evidentiary facts from which a trier of fact could reasonably infer actual knowledge, by a preponderance of the evidence.’ ”¹⁰ A plaintiff may rely on circumstantial evidence to establish actual knowledge.* ¹¹ When considering whether the condition is dangerous, the court examines “the specific object or instrumentality that caused the injury, viewed in relation to other external circumstances in which the instrumentality is situated or operates.”¹² Thus, the water diverter must be viewed in the context of its proximity to the curb cutout to evaluate whether it was a known, dangerous condition. Knowledge in this context would mean that the City knew that the water diverter in proximity to the curb cutout posed a danger to a cyclist choosing to avoid the speed bump to circumvent its speed-reducing effect because riding over the diverter could cause a loss of control resulting in a front wheel becoming trapped in the cutout, producing injury.

¶10 Jewels contends that this knowledge can be imputed to the City because it was required to comply with the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). The MUTCD applies to traffic control devices, which it defines as “all signs, signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, or bikeway by authority of a public agency having jurisdiction.”¹³

¶11 The water diverter’s purpose is to facilitate drainage; it was not designed as a means for bicyclists to bypass the speed bump. We decline to adopt Jewels’s apparent theory that the City has a responsibility to design a safe way for drivers and riders to deviate from the traveled roadway to avoid its own traffic control measures. Because the injury-causing condition, the water diverter and curb cut in close proximity, was not a traffic control device, the MUTCD standards do not apply here and we do not impute knowledge to the City from them.¹⁴

¶12 Jewels also argues that the City had actual knowledge that the water diverter was dangerous because the City created this condition. But to establish that the water diverter with an adjacent curb cut was a known condition, Jewels must show that the City knew of the condition and also knew that it was dangerous and latent.¹⁵ The City maintains that it had no knowledge of any other accidents involving the water diverter and the curb cutout. Jewels presents no evidence to refute the City’s assertion that it had no actual knowledge of a dangerous, latent condition. The mere fact that an unfortunate event occurs, without more, does not demonstrate knowledge of latent danger.

¶13 Where courts have found that a landowner had knowledge of the injury-causing condition, there was evidence that the landowners knew that the condition was dangerous before the condition caused the plaintiff’s injury.¹⁶ While Jewels asserts that the City knew that the water diverter needed to be visible because it issued a work order to paint it after his accident, this evidence of subsequent remedial measures is inadmissible under ER 407. Moreover, it does not establish the City’s knowledge of any dangerous condition before Jewels’s accident.

¶14 The dissent assumes that the unpainted diverter alone was a dangerous condition. This position ignores the role of the curb cut and its proximity to the diverter. In other words, the dissent focuses exclusively on the diverter and fails to examine “the specific object or instrumentality that caused the injury, viewed in relation to other external circumstances in which the instrumentality is situated or operates,”¹⁷ as required by the applicable case law.

¶15 Because Jewels cannot establish actual knowledge, his claim fails, and we need not reach the issue of whether the condition was latent or dangerous.¹⁸

CONCLUSION

¶16 Because the recreational land use statute applies to this case and Jewels fails to demonstrate the City’s actual knowledge of any dangerous, latent condition, we affirm.

Cox, J., concurs.

1 Smith v. Safeco Ins. Co., 150 Wn.2d 478, 483, 78 P.3d 1274 (2003) (citing Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002)).

2 Former RCW 4.24.210(4) (2003).

3 Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001).

4 Davis, 144 Wn.2d at 616.

5 Ertl v. Parks & Recreation Comm’n, 76 Wn. App. 110, 113, 882 P.2d 1185 (1994); Nauroth v. Spokane County, 121 Wn. App 389, 392, 88 P.3d 996 (2004).

6 Van Dinter v. City of Kennewick, 64 Wn. App. 930, 934-35, 827 P.2d 329 (1992).

7 Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437, 824 P.2d 541 (1992).

8 Van Scoik v. Dep’t of Natural Res., 149 Wn. App. 328, 333, 203 P.3d 389 (2009) (citing Davis, 144 Wn.2d at 616).

9 Gaeta v. Seattle City Light, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989).

10 Nauroth, 121 Wn. App. at 393 (quoting Tabak v. State, 73 Wn. App. 691, 696, 870 P.2d 1014 (1994)).

11 Nauroth, 121 Wn. App. at 393.

12 Ravenscroft v. Wash. WaterPower Co., 136 Wn.2d 911, 921, 969 P.2d75 (1998).

13 Fed. Highway Admin., U.S. Dep’t op Transe, Manual on Uniform Traffic Control Devices for Streets and Highways, at 1-1 (2003 ed., rev. Nov. 2004). This is the edition that applied on the date of the accident.

14 The MUTCD applies only to public roads. Allemeier v. Univ. of Wash., 42 Wn. App. 465, 471, 712 P.2d 306 (1985). The MUTCD likely applies to the speed bump itself because the road was open to the public and the speed bump functions as a traffic control device. While the parties dispute whether the road is public or private, the issue is irrelevant because the water diverter is not a traffic control device.

15 Ertl, 76 Wn. App. at 115.

16 Cultee v. City of Tacoma, 95 Wn. App. 505, 517-18, 977 P.2d 15 (1999); see also Tabak, 73 Wn. App. at 696-97.

17 Ravenscroft, 136 Wn.2d at 921.

18 See Ertl, 76 Wn. App. at 115.