Opinion
No. 63787-8-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 07-2-29545-3, Laura C. Inveen, J., entered June 22, 2009.
Reversed and remanded by unpublished opinion per Schindler, J., concurred in by Cox and Spearman, JJ.
Susan Camicia was seriously injured while riding her bicycle on the I-90 trail near the construction site of a Mercer Island park-and-ride project. Camicia sued the City of Mercer Island and the general contractor Howard S. Wright Construction Company. Camicia contends the court erred in granting summary judgment dismissal of her claims against the City as barred by the recreational land use statute, RCW 4.24.210. The recreational land use statute limits liability for landowners "in lawful possession and control" of land who allow members of the public to use the land for recreational purposes. Because there are material issues of fact as to whether the City can assert immunity under the recreational land use statute, we reverse and remand for trial.
The court certified the judgment for appeal under CR 54(b) and stayed the claims against general contractor Howard S. Wright.
FACTS
The Washington State Department of Transportation (WSDOT) built the I-90 trail as part of a regional, non-motorized public transportation system with federal and state highway funds. The eight to ten-foot asphalt trail serves as a means of shared-use non-motorized transportation between Seattle, Mercer Island, and Bellevue. WSDOT designed and constructed the trail and installed bollards, or wooden posts, where the I-90 trail intersects with city streets.
On January 28, 1987, the City entered into the "I-90 Turnback and Landscape Maintenance Agreement" with WSDOT. The Agreement is identified as "Phase I" and provides for the "turnback and relinquishment of and/or transfer of ownership" of certain rights-ofway owned by WSDOT. The City also agreed to accept responsibility for maintenance of designated roadways, rights-of-way, and construction easements. In exchange, and WSDOT agreed to pay the City $68,000 per year. The Turnback and Landscape Maintenance Agreement states, in pertinent part:
1. This Phase I Agreement is intended to cover those areas depicted in color on the attached map. . . . The areas include acceptance by the City of the turnback and relinquishment of and/or transfer of ownership by WSDOT of certain rights-ofway, roadways, and slope/construction easements. The areas also include the extra-wide structures which cross over I-90 and also include those irregular pieces of property north of the I-90 major retaining walls and between 76th Avenue SE and East Mercer Way which are currently within WSDOT right-ofway.
2. The City agrees to accept maintenance responsibility for each of the areas. . . .
3. City maintenance responsibility will involve all street and landscape maintenance and operation within areas shown . . . however, that WSDOT will remain responsible for structures and structural maintenance of retaining walls and overcrossings within the State right-of-way.
. . . .
5. WSDOT agrees to reimburse the City in the amount of Sixty-eight thousand dollars ($68,000.00) per year for maintenance of the areas depicted. . . . This payment will be adjusted for inflation annually. . . .
In April 2000, WSDOT executed a quitclaim deed conveying title to portions of the I-90 trail. The Quitclaim Deed provides, in pertinent part:
the STATE OF WASHINGTON, for and in accordance with that Agreement of the parties entitled GM 1268, dated the 28th day of January, 1987, herby conveys and quitclaims unto the CITY OF MERCER ISLAND, a municipal corporation in the State of Washington, all right, title, and interest under the jurisdiction of the Department of Transportation, in and to the following described real property situated in King County, State of Washington:
. . . .
It is understood and agreed that the above referenced property is transferred for road/street purposes only, and no other use shall be made of said property without obtaining prior written approval of the grantor.
In February 2006, Sound Transit retained Howard S. Wright Construction Company (HSW) as the general contractor to expand the Park-and-Ride located at the north end of Mercer Island. In March, the City issued a permit to HSW to construct a temporary chain link fence around the perimeter of the project. The fence ran south on 81st Avenue SE to the corner of N Mercer Way, and then west on N Mercer Way along the edge of the I-90 trail. The fence footing protruded into the public right-of-way. The wooden posts, or bollards, that separated the I-90 trail from the street were located approximately 20 feet west of the chain link fence at the intersection of 81st Avenue SE and N Mercer Way.
On June 19, 2006, Susan Camicia was riding her bicycle westbound on the I-90 trail on Mercer Island. When she reached the Park-and-Ride construction site, Camicia steered to the left to avoid the chain link fence and the fence footings. Camicia collided with the middle wooden bollard at the intersection of 81st Avenue SE and N Mercer Way. Camicia was thrown over the handlebars of her bicycle and landed head first on the asphalt. The fall severed her spinal cord and left Camicia quadriplegic.
In September 2007, Camicia filed a personal injury lawsuit against HSW and the City. Camicia alleged that HSW was negligent in the construction and maintenance of the fence and created a hazardous condition. Camicia alleged that the City was negligent in granting the permit to HSW to construct the fence, that the City breached its duty to maintain the I-90 trail in a reasonably safe manner, and that the City did not comply with applicable safety standards. In answer to the complaint, the City admitted WSDOT designed and constructed the mixed-use I-90 trail and the wooden bollards. The City asserted as an affirmative defense that Camicia's claims were barred under the recreational land use statute, RCW 4.24.210.
In April 2008, the City filed a motion for summary judgment dismissal of Camicia's claims as barred by the recreational land use statute. In support, the City submitted the declaration of City Engineer Patrick Yamashita and the City's designated CR 30(b)(6) witness, Developmental Services Director Steve Lancaster.
The City argued that it was entitled to immunity under the recreational land use statute because the City identifies the I-90 trail as part of its regional park system in the 1991 "Comprehensive Park, Recreation, Open Space, Arts and Trails Plan" (Comprehensive Park Plan) and the City's "Park System Guide."
In his declaration, City Engineer Yamashita testified that the portion of the I-90 trail on Mercer Island that the City operates and maintains connects with the bike path on the I-90 East Channel Bridge and the Floating Bridge. Yamashita testified that the bike path was designed and set aside for recreational use. Yamashita states that the location of Camicia's accident is identified as a bike path in the City's 1991 Comprehensive Park Plan and in the Park System Guide. The 1991 Comprehensive Park Plan provides, in pertinent part:
I-90 Trails and Linear Park
Primarily located along the north side of I-90, a multi-purpose pedestrian/bicycle regional trail will connect the East Channel and Floating bridges in 1992. Spur connections across the lids and overpasses will also be provided, tying together both sides of the 8-lane freeway. In total, there will be 8 miles of trails in the corridor. Both sides of I-90 and portions of the lids and overpasses will be heavily landscaped, and used as park lands. The linear park includes 90.5 acres along the freeway. The major portions of this park will buffer the Central Business District from the freeway.
According to Yamashita, the wooden bollards are located where city streets intersect with the I-90 trail to prevent vehicles from using the trail, and explained the difference between designing a sidewalk and a bike path.
Bicycle paths of this nature are generally much wider than a sidewalk or walking path. Because they are wider, there is the potential that a motorist may believe the bike path is part of the City street system. The bollards prevent vehicles from entering the area set aside exclusively for non-motorized users. In addition, the bollards serve to alert bicyclists that they are leaving the I-90 trail, and entering a public transportation facility or crossing a street.
. . . .
The area of the accident is not just a sidewalk but a bike path. Sidewalks are designed for pedestrian use, and are typically five feet wide. They are not designed for shared or mixed use, like the bike path in our Linear Park. Bike paths anticipate mixed use by bicyclists, walkers, runners, and other wheeled users (like in-line skaters). Sidewalks are designed primarily for pedestrians. The bike path where Plaintiff was riding was much wider than most sidewalks, because it is a mixed use path set aside for recreation as part of the Linear Park and regional trail. It is so wide that bollards were installed by WSDOT to keep cars from entering the path.
Lancaster testified that based on his review of City records, "as far back as 1973," the bike path had been designated by the City as a recreational facility and part of its park system.
It is my belief and opinion based upon a review of the institutional records and documents, that the City of Mercer Island has designated the location where Susan Camicia had her accident as a recreational facility which served a mixture of uses.
In my review of records I found that as far back as 1973, planning documents designated the then-proposed I-90 trail as part of a system of parks and open space providing a major cross-Island open space trail link between the east and west sides of Mercer Island. My review of the records and documents indicated that after I-90 and the I-90 trail were constructed, the City designated the area of Camicia's accident as part of a "Linear Park." It made this designation in various versions of comprehensive plans, other planning documents, and parks department documents and maps.
Because the area of Susan Camicia's accident was designated as part of the I-90 Linear Park, and recognized by the City as a recreational facility, that portion of the park facility is maintained by our Parks Department. In contrast, public streets are maintained by a separate department within the City.
In opposition to summary judgment, Camicia argued that the recreational land use statute did not apply because the City did not establish possession and control of the portion of the regional I-90 trail where Camicia was injured, and the City did not have the authority to "open up" or allow the public to use the land. Camicia submitted excerpts from the 2002 "Evaluation of the I-90 Bicycle and Pedestrian Path as a Potential Section 4(f) Resource" by WSDOT in conjunction with the "I-90 Two-Way and HOV Operations" project. In the evaluation, WSDOT states that it has jurisdiction over the I-90 trail and that the trail is a regional transportation route and not recreational land. Camicia also submitted the 1987 Turnback and Landscape Maintenance Agreement between WSDOT and the City, and portions of the depositions of Lancaster and Yamashita to show the City did not have the authority to close the I-90 trail.
The court denied the motion for summary judgment without prejudice. The court ruled there were material issues "as to whether or not the City has the power to close this transportation corridor, whether the City is actually the owner, and whether this is recreational use land at all."
After the case was transferred to another judge, the City filed a renewed motion for summary judgment on the grounds that the recreational land use statute barred Camicia's claims against the City. In support, the City submitted supplemental declarations from Lancaster and Yamashita, a survey, and the Quitclaim Deed between WSDOT and the City. The supplemental declarations clarify that the City "owned and controlled" the site of the accident. Yamashita also testified that the City could "unilaterally `shut down' or limit use of this portion of the I-90 Trail if it desired to do so. If it did, it would not need to seek permission from any other authority since it is owned and controlled by the City." The survey and the Quitclaim Deed are attached to Yamashita's declaration.
In opposition, Camicia submitted the declaration of its engineering expert Edward M. Stevens. Stevens testified that the City did not comply with the American Association of State Highway and Transportation Officials (AASHTO) engineering standards or the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) because the City did not conduct "an engineering study to determine the condition or safety of the sidewalk bikeway before it allowed a construction fence to be installed along the edge of the N Mercer Way sidewalk." Stevens testified that in his opinion,
the City's bicycle facilities on the designated N. Mercer Way sidewalk bikeway where this collision occurred did not conform to the applicable AASHTO and MUTCD standards and WSDOT guidelines at the time Susan Camicia was injured. In my professional engineering opinion, the deficient clearances created by the construction fence, the deficient spacing between the unmarked and apparently unnecessary bollard posts, the lack of bright paint and reflectors on the bollard posts, the failure to remove the obstruction created by the middle bollard post, and the lack of envelope striping or other markings on the pavement to warn bicyclists of the middle bollard post made the sidewalk bikeway inherently dangerous and deceptive to a prudent bicyclist.
Camicia argued the City did not meet its burden of proving that the recreational land use statute applied and barred her claims against the City. Camicia asserted that the City did not have the authority to either open or close the I-90 trail for public recreation. Camicia also argued that the evidence did not support the City's claim that the I-90 trail was recreational land, and the supplemental declarations of Lancaster and Yamashita contradicted their earlier testimony.
The court granted the City's motion for summary judgment. The court ruled that the Quitclaim Deed established the City had ownership and control of the bicycle path at the location of the accident. The court also concluded the evidence established that the City had designated the I-90 trail on Mercer Island as recreational land. At Camicia's request, the court entered a final judgment under CR 54(b).
ANALYSIS
Camicia argues the trial court erred in dismissing her negligence claims against the City under the recreational land use statute, RCW 4.24.210. Camicia asserts that the City did not show the recreational land use statute bars her claims against the City. The City asserts that the statute applies because it owns and controls the I-90 trail as part of its recreational parks system.
We do not consider Camicia's arguments raised for the first time on appeal, including the argument that payment by WSDOT to the City under the Turnback Agreement is a fee under RCW 4.24.210(1). RAP 2.5(a).
We review summary judgment de novo and consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Commc'ns, Inc. v. Seattle Times, 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bulman v. Safeway, Inc., 144 Wn.2d 335, 351, 27 P.3d 1172 (2001). But, where different competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Johnson v. UBAR, LLC, 150 Wn. App. 533, 537, 210 P.3d 1021 (2009).
The recreational land use statute, RCW 4.24.210, gives immunity to landowners for unintentional injuries to recreational users of the land. The statute applies if a landowner who is in lawful possession and control allows the public to use the land for recreational purposes without charging a fee. RCW 4.24.210 provides, in pertinent part:
(1) . . . any public or private landowners 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 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.
. . . .
(4) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.
The purpose of the recreational land use statute is set forth in RCW 4.24.200. RCW 4.24.200 provides that the purpose of the recreational land use statute is to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.
The recreational land use statute modifies a landowner's common law duty in order "to encourage landowners to open up their lands to the public for recreational purposes." Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001). Because the recreational land use statute is in derogation of common law, the statute is strictly construed. Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437, 824 P.2d 541 (1992).
Under the statute, "possession and control" means that the landowner must have "continuing authority to determine whether the land should be open to the public." Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 557-58, 872 P.2d 524 (1994). In determining whether the statute applies, we also look to the perspective of the landowner. Gaeta v. Seattle City Light, 54 Wn. App. 603, 608-09, 774 P.2d 1255 (1989).
Although the parties dispute whether Camicia was using the bike path recreationally at the time of the accident, the issue is not material.
We find the proper approach in deciding whether or not the recreational use act applies is to view it from the standpoint of the landowner or occupier. If he has brought himself within the terms of the statute, then it is not significant that a person coming onto the property may have some commercial purpose in mind. By opening up the lands for recreational use without a fee, City Light has brought itself under the protection of the immunity statute, and it therefore is immaterial that Gaeta may have driven across the dam in search of gasoline at the resort.
Gaeta, 54 Wn. App. at 608-09.
Viewing the evidence in the light most favorable to Camicia, there are material issues of fact as to whether the recreational land use statute applies to the City.
There is no dispute that WSDOT designed and built the I-90 trail using federal and state highway transportation funds as a means of non-motorized regional transportation. There is also no dispute that the City owns the portion of the I-90 trail where the accident occurred.
In April 2000, WSDOT conveyed title to the City for those properties of the I-90 trail on Mercer Island, including the accident site. But the Quitclaim Deed expressly states that the property is transferred to the City "for road/street purposes only, and no other use shall be made of said property without obtaining prior written approval" of WSDOT.
The Quitclaim Deed provides, in pertinent part:
It is understood and agreed that the above referenced property is transferred for road/street purposes only, and no other use shall be made of said property without obtaining prior written approval of the grantor. It is also understood and agreed that the grantee, its successors or assigns, shall not revise either the right of way lines or the access control without prior written approval from the grantor, its successors or assigns. Revenues resulting from any vacation, sale, or rental of this property, or any portion thereof, shall: (1) if the property is disposed of to a government entity for public use, be placed in the grantee's road/street fund and used exclusively for road/street purposes; or (2) if the property is disposed of other than as provided in (1) above, be shared by the grantee and grantor, their successors or assigns in the same proportion as acquisition costs were shared, except that the grantee may deduct the documented directs [sic] costs of any such vacation, sale, or rental.
Accordingly, while the City owns the part of the trail where the accident occurred, there are material issues of fact as to whether the City has the authority to designate the I-90 trail as recreational land and assert immunity under RCW 4.24.210. There is no evidence in the record that WSDOT authorized the City to use the I-90 trail for any purpose other than "for road/street purposes." Nor is there any evidence that WSDOT, as the predecessor in interest, ever viewed that I-90 trail as recreational land. To the contrary, the evidence shows that WSDOT always characterized the I-90 trail as part of the regional transportation system and not as recreational land. For instance, in the Evaluation of the I-90 Bicycle and Pedestrian Path as a Potential Section 4(f) Resource, WSDOT states that the I-90 trail is an integral part of the regional transportation system and not recreational land.
As the "officials having jurisdiction over" the I-90 bicycle and pedestrian path, WSDOT has determined that the major purpose of that facility is transportation. The path was built as part of a multi-modal transportation facility, using federal and state highway funds. No funds designated for recreational facilities were used in constructing the path and separate accounts were used to ensure the separation of recreational and transportation funds.
. . . .
By providing a means of non-motorized access across Lake Washington, the path permits users to travel between Seattle and Mercer Island and access other areas in the Puget Sound Region. The path, in fact, is the only means for non-motorized access to Mercer Island and across Lake Washington. As such, it is an important link in the regional transportation system. While the path can be used for recreational purposes, it was developed and exists primarily for transportation, and serves as an integral part of the local transportation system.
The 2004 assessment for the "Mercer Island Park-and-Ride and Bus Platform Improvement Project," prepared by the Federal Transit Administration in coordination with the City of Mercer Island and City Engineer Yamashita, also states that "[t]he proposed site is not a publicly owned . . . park [or] recreation area" and therefore complies with federal regulations.
The City's reliance on Riksem v. Seattle, 47 Wn. App. 506, 736 P.2d 275 (1987) is misplaced. In Riksem, a bicycle rider collided with a jogger on the Burke-Gilman trail and was injured. Riksem, 47 Wn. App. at 507-08. On appeal, the bicycle rider argued that the recreational land use statute did not apply because the City was not entitled to immunity as a successor in interest and because the statute violated equal protection. Riksem, 47 Wn. App. at 512. This court rejected the bicycle rider's argument that the statute violated equal protection and that the City was not entitled to immunity as a successor in interest.
The statute clearly states it is an encouragement for owners/possessors in control of land to make it available to the public for recreational purposes by the limiting of their liability. It would not make sense to provide immunity to only those owners who originally open up the land for recreational purposes.
Riksem, 47 Wn. App. at 510.
Here, unlike in Riksem, the original owner WSDOT built the I-90 trail as part of a regional transportation system. Accordingly, the Quitclaim Deed expressly states that the portions of the I-90 trail conveyed to the City are restricted to "road/street purposes only" unless WSDOT gives written approval otherwise.
And unlike here, in Chamberlain v. Dep't of Transp., 79 Wn. App. 212, 901 P.2d 344 (1995), there was no dispute that the landowner had the authority to expressly dedicate the site of the accident to recreational use. Chamberlain, 79 Wn. App at 216.
Because there are material issues of fact as to whether the recreational land use statute applies to the City, we reverse and remand for trial.
WE CONCUR: