IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN ARCHER, as legal guardian of
JOHN B. ARCHER, a minor child,                          No. 73449-1-1


                     Appellant,                         DIVISION ONE

                                                        UNPUBLISHED OPINION

MARYSVILLE SCHOOL DISTRICT, a
local government entity,

                     Respondent.                        FILED: July 25, 2016 ^
                                                                                 en

      Appelwick, J. —Archerwas injured while playing basketball on a Marysville

School District playground on a Saturday. Archer sued. The trial court dismissed

Archer's case on summary judgment based on Washington's recreational use

statute, RCW 4.24.210. The statute provides public and private landowners who

allow members of the public to use their lands for purposes of outdoor recreation

immunity from liability for unintentional injuries to such users. |a\ Archer argues
that even though the statute's language explicitly applies to public landowners, the

legislature did not intend for recreational use immunity to apply to public
landowners such as school districts. He asserts that basketball is not an outdoor

recreation activity to which RCW 4.24.210 applies. He claims that the District has

not provided sufficient evidence that it intended to open the playground to the

public for outdoor recreation purposes. We affirm.
                                      FACTS


       Sunnyside Elementary School, a school within the Marysville School District
(District), has an outdoor playground. The playground has basketball hoops and
courts. The playground isfenced on all sides, but is not locked. Outside of regular
No. 73449-1-1/2




school hours, including on the weekends, the playground and the basketball

facilities are open to the public for use at no charge.

       On Saturday, January 25, 2014, 13 year old John Archer was playing

basketball on the outdoor court on Sunnyside Elementary School's playground.

Archer was not a student at the school at the time. While Archer was playing, a

pole supporting the backboard and hoop collapsed and caused injuries to Archer's

face. Archer filed a lawsuit against the District, alleging negligence.

       The District filed a motion for summary judgment, arguing that itwas entitled

to immunity under the recreational use immunity statute, RCW 4.24.210. That

statute provides landowners who allow members of the public to use their lands
for purposes of outdoor recreation immunity from liability for unintentional injuries
to such users. RCW 4.24.210(1). The trial court initially denied the District's

motion for summary judgment. It reasoned that there was an issue of material fact

as to whether immunity actually applies, because the District had a playground
equipment policy that indicated it would provide safe playground equipment. The
District filed a motion for reconsideration, arguing that the playground equipment

policy did not create a duty and that it was entitled to recreational use immunity.
The trial court granted the District's motion for reconsideration, granted the
District's underlying motion for summary judgment, and dismissed Archer's claims
with prejudice. Archer appeals.
No. 73449-1-1/3




                                  BACKGROUND


      Washington's recreational use statute, RCW 4.24.210, was enacted 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.

RCW 4.24.200. The current version of RCW 4.24.210 states in relevant part:

      (1) • • • [A]ny 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 them for the purposes of outdoor
      recreation, which term includes, but is not limited to, the cutting,
      gathering, and removing of firewood by private persons for their
      personal use without purchasing the firewood from the landowner,
      hunting, fishing, camping, picnicking, swimming, hiking, bicycling,
      skateboarding or other nonmotorized wheel-based activities, aviation
      activities including, but not limited to, the operation ofairplanes, ultra
      light airplanes, hang gliders, parachutes, and paragliders, rock
      climbing, the riding of horses or other animals, clam digging,
      pleasure driving of off-road vehicles, snowmobiles, and other
      vehicles, boating, kayaking, canoeing, rafting, nature study, winter or
      water sports, viewing or enjoying historical, archaeological, scenic,
       or scientific sites, without charging a fee of any kind therefor, shall
       not be liable for unintentional injuries to such users.

On appeal, Archer's primary argument is that the legislative history for these and
other statutes dictates that the legislature did not intend for recreational use

immunity to apply to public school districts. Consequently, we begin by briefly
considering this relevant legislative history.

       In 1917, a bill was enacted that barred actions against school districts for

noncontractual acts or omissions relating to any park, playground, field house,

athletic apparatus or appliance or manual training equipment. Waaenblast v.
No. 73449-1-1/4




Odessa Sch. Dist. No. 105-157-166J, 110 Wn.2d 845, 858, 758 P.2d 968 (1988);

Laws of 1917, ch. 92, § 1 (former RCW 28.58.030 (1917)). Years later, in 1967,

the legislature repealed former RCW 28.58.030. Paulson v. Pierce County. 99

Wn.2d 645, 651, 664 P.2d 1202 (1983). That same year, Washington enacted

RCW 4.24.210. McCarver v. Manson Park and Irrigation District, 92 Wn.2d 370,

374, 597 P.2d 1362 (1979); Laws of 1967, ch. 216, §2. At the time, RCW 4.24.210

did notspecify whether it applied to both private and public landowners. See Laws

OF 1967, ch. 216, §2.

       RCW 4.24.210 was amended in 1972. Laws of 1972, 1st ex. sess., ch.

153, § 17.     The words "public or private" were inserted before the word
"landowners" in the first sentence of the statute and the driving of "snowmobiles"

and "all-terrain vehicles" (ATV) were added to the list of outdoor recreational

activities, jd.; McCarver, 92 Wn.2d at 375. The amendments to RCW 4.24.210
were included in a bill which substantially revised the administration of ATV law

and was designed to increase the availability ofATV trails and areas. Id There
is otherwise limited legislative history available concerning the impetus for the
addition of the words "public or private" to the statute, jd.

       The Washington Supreme Court considered the import of the addition of
those words and interpreted RCW 4.24.210 in McCarver. In McCarver, a girl died
in 1973 after falling or being pushed from a diving tower and hitting her head on a
dock while swimming in Manson Park. Id at 371. Manson Park was a public
landowner—an unincorporated quasi-municipal corporation—which allowed the

public to use the area for recreation without charging a direct fee. Id at 371, 372.
No. 73449-1-1/5




The deceased's mother and father initiated an action against the park. Id. at 371-

72. The park moved for summary judgment based on recreational use immunity.

Id at 372. The trial court granted summary judgment in part, reasoning that the

recreational use immunity statutes applied. Id On appeal, the McCarver court

noted that the sole issue was whether the park is included in the class of protected

landowners under the statute. Id. at 374.

       Notwithstanding the fact that the language of the statute expressly included

public landowners and that the parties stipulated that the park allowed the public

to use the swimming area, the plaintiffs argued that the park was not within the

purview of the statute. ]d at 373-74. They made this argument based on the

statutory history, statutory purpose, and public policy, jd The plaintiffs asserted

that the limitations on the liability of public landowners under RCW4.24.210 should

be restricted to ATV and snowmobiling activities, because the purpose of the 1972

amendments was directed toward those activities. Id at 376.

       The McCarver court reviewed the statutory history and statutory purpose,

id at 375-77. It ultimately concluded that the language of the statute was clear

and unambiguous and that RCW 4.24.210 drew no distinction between public and

private landowners. Id at 376. It held that clearly, the statute, as amended,

includes public landowners and occupiers within the recreational use immunity

from liability. \± The court specifically stated, "If the legislature intended the

liability limitations to apply to public owners only as to incidents arising from the

use of ATV and snowmobiles, it should have used more precise language to

establish such an intent." Id.
No. 73449-1-1/6




       As to the statutory purpose, the plaintiffs argued that limitations on liability

are not necessary to encourage public landowners, such as the park, to devote

public land to recreational use. ]d at 377. But, the McCarver court concluded that

the statutory purpose as outlined in RCW 4.24.200 was not restricted to private

landowners.    ]d    ("In 1972, the Washington legislature made a legislative

determination that inclusion of public, as well as private, landowners effectuated

the statutory purpose of encouraging the availability of recreational land and water

areas.").

       After McCarver. in 1979, the legislature amended RCW 4.24.210 by

substituting "any lands whether rural or urban" for "agricultural and forest" lands.
Laws of 1979, ch. 53. § 1. It also made changes to the list of outdoor recreation

activities. Id Most notably, it added the phrase "but is not limited to" in front ofthe

list, making it non-exhaustive.1 jd Since the 1979 amendments, no Washington

court has rejected the application of recreational use immunity based on the fact

that the defendant was a public landowner.




      1After 1979, RCW 4.24.210 was amended again in 1980,1991,1992,1997,
2003, 2006, 2011, and 2012. See Laws of 1980, ch. 111, § 1; Laws of 1991, ch.
50, § 1; Laws of 1991, ch. 69, § 1; Laws of 1992, ch. 52, § 1; Laws of 1997, ch.
26, § 1; Laws of 2003, ch. 16, § 2; Laws of 2003, ch. 39, § 2; Laws of 2006, ch.
212, §6; Laws of2011, ch. 53, § 1; Laws of2011, ch. 171, §2; Laws of2011, ch.
320, § 11; Laws of 2012, ch. 15, § 1. The post-1979 amendments added various
outdoor recreation activities to its coverage (skateboarding or other nonmotorized
wheel-based activities, rock climbing, fixed anchors, aviation activities including
but not limited to, the operation of airplanes, ultra-light airplanes, hanggliders,
parachutes, and paragliders) and made it so that certain administrative charges do
not constitute "fees" that would preclude immunity. Compare Laws of 1979, ch.
53, §1 with RCW 4.24.210.
No. 73449-1-1/7




                                   DISCUSSION


       Archer argues that the trial court erred when it granted the District's motion

for summary judgment on reconsideration. This court reviews summary judgment

orders de novo. Hadlev v. Maxwell. 144 Wn.2d 306, 310-11, 27 P.3d 600 (2001).

Summary judgment is appropriate only where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. CR

56(c); Peterson v. Groves. 111 Wn. App. 306, 310, 44 P.3d 894 (2002). When

considering the evidence, the court draws reasonable inferences in the light most

favorable to the nonmoving party. Schaafv. Hiqhfield. 127 Wn.2d 17, 21, 896 P.2d

665 (1995).

  I.   Recreational Use Immunity - Public Landowners

       Archer begins by arguing that the legislature did not intend for recreational

use immunity to provide immunity to public school districts. He claims that itwould

be absurd and unjust to conclude that the 1967 legislature would repeal school

districts' tort immunity for defective playground athletic equipment only to reinstate

it via recreational use immunity without being explicit.

       Recognizing that McCarver is still good law and binding authority, Archer

sets out to attack the McCarver court's analysis. Like the plaintiffs in McCarver.

Archer argues that the legislature intended only to extend the immunity to tort

claims arising from recreational vehicle use. He asserts the McCarver court did

notaddress relevant legislative history ofthe 1972 amendments2 northe legislative

       2 The 1972 amendments adding "public or private" to RCW 4.24.210 were
not originally included in the house bill, but were later added by the Senate
Committee on Natural Resources and Ecology. McCarver. 92 Wn.2d at 375-76.
No. 73449-1-1/8




history of the 1979 amendments, which confirmed that the addition of "any lands

whether rural or urban" applied only to private landowners.3 Archer asserts:

              McCarver's statement that "[cjlearly, the statute, as amended,
      includes public landowners and occupiers within the recreational use
      immunity from liability,92 Wn.2d at 376, should be clarified because
      it has fueled the legend that the Washington Legislature in 1972 and
      1979 expanded recreational use immunity to cover all recreation
      activities commonly conducted outdoors on all public lands.

Archer also criticizes McCarver's statement that in 1972, the Washington

legislature made a legislative determination that inclusion of public as well as

private landowners effectuated the statutory purpose of encouraging the

availability of recreational land and water areas.           He asserts that this is

contradicted by the legislative synopsis.

       But, whether the McCarver court considered or adequately considered this

legislative history is not dispositive. First, as noted by the McCarver court, the

plain language of RCW 4.24.210(1) is clear:

       [A]ny public or private landowners . . . who allow members of the
       public to use [their land] for the purposes of outdoor


Archer cites to the legislative synopsis of the bill and notes that the addition of
"public or private" landowners was not considered to be a substantive change by
the Senate. Archer's characterization is accurate. The explanation of the Senate
amendment stated that there were only four substantive changes and it did not
mention that addition. The McCarver court noted that the 1972 amendment was
not originally in the house bill and that itcame out of the Senate. 92 Wn.2d at 376.
But, the court did not reference the legislative synopsis.
         3 Archer cites to the bill report for the assertion that the expansion of
recreational use immunity from agricultural and forest lands to "any lands whether
rural or urban" in 1979 applied only to private landowners. The bill report stated
that the issue was that private landowners should have clear protection from
liability when they allow their land to be used for recreational purposes. The
McCarver court did not discuss the 1979 amendments—or its legislative history—
because the plaintiff's injuries in that case occurred in 1973. 92 Wn.2d at 371.

                                              8
No. 73449-1-1/9


      recreation . . . without charging a fee of any kind therefor, shall not
      be liable for unintentional injuries to such users.

92 Wn.2d at 373, 376 (emphasis omitted) (quoting RCW 4.24.210). This court

does not subject an unambiguous statute to statutory construction. Cerrillo v.

Esparza. 158 Wn.2d 194, 201, 142 P.3d 155 (2006). Thus, when a statute is not

ambiguous, only a plain language analysis of the statute is appropriate, jd at 201.

Each word of a statute is to be accorded meaning because drafters of legislation

are presumed to have used no superfluous words, and courts may not delete

language from an unambiguous statute. State v. Roqqenkamp. 153 Wn.2d 614,

624, 106 P.3d 196 (2005). We conclude that the plain language, "any public or

private landowners" clearly extends recreational use immunity to public
landowners such as the District.

       Additionally, the legislature has amended RCW 4.24.210 on numerous

occasions since the McCarver decision in 1979. See Laws of 1980, ch. 111, § 1

Laws of 1991, ch. 50, § 1; Laws of 1991, ch. 69, § 1; Laws of 1992, ch. 52, § 1
Laws of 1997, ch. 26, § 1; Laws of 2003, ch. 16, § 2; Laws of 2003, ch. 39, § 2
Laws of 2006, ch. 212, § 6; Laws of 2011, ch. 53, § 1; Laws of 2011, ch. 171, § 2

Laws of 2011, ch. 320, § 11; Laws of 2012, ch. 15, § 1. Despite the decision in
McCarver. the legislature has not amended the language "public or private
landowners."      jd   Courts presume the legislature is familiar with judicial
interpretations of statutes. State v. Ervin, 169 Wn.2d 815, 825, 239 P.3d 354
(2010). As the legislature has not changed this language, Washington courts have
consistently granted recreational use immunity to public landowners since
McCarver. See, e.g.. Curran v. Citv of Marysville. 53 Wn. App. 358, 359-60, 367,
No. 73449-1-1/10




766 P.2d 1141 (1989) (affirming dismissal of claim for injuries while playing on

public park playground's exercise equipment); Van Pinter v. City of Kennewick.

121 Wn.2d 38, 40, 846 P.2d 522 (1993) (affirming dismissal of claim for injuries on

public park playground equipment); Swinehart v. City of Spokane. 145 Wn. App.

836, 839, 187 P.3d 345 (2008) (affirming dismissal of claim for injuries on slide in

public park playground). The Curran court specifically addressed the issue of

whether recreational use immunity applies to a public landowner.4 53 Wn. App. at

362. It held that it does. Archer responds only that none of these cases examined

the legislative history of the 1972 and 1979 amendments to RCW 4.24.210. We

decline Archer's invitation to disregard what became a well-settled principle of law

when the Washington State Supreme Court decided McCarver.

 II.   Proof of Intent

       Next, Archer argues that the District failed to prove that it intended to open

its playground to the public for outdoor recreation purposes. Archer notes that for

recreational use immunity to apply, land must be opened for the purpose of

recreation and that it would not be held open to the public in the absence of that

use. Citing to Camicia v. Howard S. Wright Construction Company. 179 Wn.2d

684, 697, 317 P.3d 987 (2014), Archer asserts that the proper focus of this inquiry

is on the landowner's intent. The District maintains that the playground was open

to the public for recreational use at no charge. But, Archer claims that because


       4 Van Pinter and Swinehart—and many other cases cited by the District
involving public landowners—considered only whether an exception to
recreational use immunity applied, not specifically whether public landowners are
afforded immunity. Van Pinter. 121 Wn.2d at 43; Swinehart. 145 Wn. App. at 845.

                                             10
No. 73449-1-1/11




recreational use immunity is an affirmative defense, the burden is on the Pistrict to

provide evidence of this intent.

       But, Camicia stands for neither the proposition that the land must be

exclusively used for recreational purposes nor the proposition that the Pistrict must

provide affirmative evidence that it intended to open the playground for recreational

use purposes. In Camicia. the plaintiff sustained injuries when she was thrown

from her bike on the Interstate I-90 bicycle trail located in the city of Mercer Island.

179 Wn.2d at 687. The city moved for summary judgment, claiming recreational

use immunity. Id The Camicia court held that summary judgment was improper.

Id. It concluded that there were disputed issues of fact as to whether the trail

served a recreational purpose as opposed to a transportation purpose. Id It stated

that where land is open to the public for some other purpose—for example as a

part of a public transportation corridor—the inducement of recreational use

immunity is unnecessary. Jd at 697. This is because itwould make little sense to

provide immunity on the basis of recreational use when the land would be held

open to the public even in the absence ofthat use. jd. The court noted that viewed

in the light most favorable to the plaintiff, the deed conveying portions of the I-90

trail to the city suggested that the city lacks the ability to close the trail to

transportation, id at 700. And, therefore, a factfinder could reasonably infer that

the I-90 trail would be open to public bicycling for transportation purposes

regardless of any recreational use or function, and that the public invitation was

therefore not for the purposes of outdoor recreation, id at 700-01.




                                               11
No. 73449-1-1/12




       Camicia does not require the landowner to intend to open the land for the

purpose of recreation to the exclusion of all other purposes. Rather, it stands for

the proposition that if the land is required to be used for a public nonrecreational

use purpose, it is a question of fact whether the public invitation can be said to be

for purposes of outdoor recreation. Here, unlike in Camicia. there is no evidence

in the record that the playground is required to be or would be used for any other

purpose during nonschool hours except on special occasions such as during a

carnival or an event requiring overflow parking. Because a landowner may use

the land for different purposes at different times, it is necessary to focus on the

nature of the landowner's use at the time of the accident being litigated. Home v.

N. Kitsap Sch. Pist.. 92 Wn. App. 709, 714, 965 P.2d 1112 (1998).

       Here, at the time Archer was injured, school was not in session nor was the

school using the playground for school-related purposes.5 And, unlike a bike trail

which may be open for transportation in addition to recreation purposes, it is

difficult to contemplate what the Pistrict's alternative intent would be in keeping the

playground open to the public during these other times. See Widman v. Johnson.

81 Wn. App. 110, 114, 912 P.2d 1095 (1996) (reasoning that when every

reasonable person would believe the landowner opened the property for

recreational use the fact that itcould serve other purposes lacks legal significance).

Moreover, unlike the deed requirement in Camicia. there is no requirement that the

Pistrict keep the playground open at all.

      5 That the playground is occasionally used for special events and bus
transportation purposes does not change the fact that the playground was open
for Archer's recreational use at the time he was injured.


                                              12
No. 73449-1-1/13




      Still, Archer argues that the Pistrict's written playground equipment policy6

provides evidence that the Pistrict did not prove the playground was open for the

purpose of outdoor recreation. And, he notes that the playground policy actually

evidences the Pistrict's intent to provide a duty of reasonable care—not to claim

immunity—when it opened the playground. On reconsideration, the trial court

rejected this argument, reasoning that the Pistrict's safety policy does notestablish

the Pistrict's intended use for the playground, but rather establishes the Pistrict's

maintenance procedures for its outdoor recreational facilities. We agree with the

trial court. That the Pistrict aspires to provide safe equipment—even during

nonschool hours—does not mean that it intended to keep the playground open for

another purpose besides recreation.         Nor does it signal it was waiving the
protection of the statute for outdoor recreational activities.
       Archer has not provided any authority to support his assertion that the

Pistrict is required to present evidence that unequivocally proves its intent to open

the playground for outdoor recreational purposes. We conclude that there is no
genuine issue of material fact that the playground was open for purposes of
outdoor recreation at the time of Archer's injury.




     6 The policy states that playground equipment is an essential part of a
complete school facility. And, it states that all playground equipment should be
assessed in terms of suitability and durability and for possible health or safety
hazards. It mandates that consideration should be given to potential hazards when
the playground is unsupervised during nonschool hours.

                                              13
No. 73449-1-1/14




III.   Basketball as an Outdoor Recreation Activity

       Next, Archer claims that basketball is not an outdoor recreation activity to

which RCW 4.24.210 applies.         RCW 4.24.210(1) provides a list of "outdoor

recreation" purposes, but notes that the term is not exhaustive.

       Archer cites to Matthews v. Elk Pioneer Pays. 64 Wn. App. 433, 438, 824

P.2d 541 (1992), to support his argument.         In Matthews, the court held that

watching a performance conducted on an outdoor stage at a community festival

was not an activity covered under RCW 4.24.210. 64 Wn. App. at 438. The

Matthews court identified the issue as whether festival activities are similar to the

specific examples of outdoor recreation set forth in RCW 4.24.210. id It noted

that the common feature of the statutory examples is that they are types of

activities that require the outdoors and are generally physical in nature, requiring

the active involvement of the person using the land. Jd It reasoned that festival

activities do not require either active involvement or the outdoors. Jd

       Archer argues that competitive team sports like basketball are more like

watching a performance because they are usually played indoors, and are not

similar to the outdoor-only activities listed in RCW 4.24.210. But, the Matthews

court did not hold that the activity must be an outdoor-only activity. And, in fact, in

Curran. the court concluded that "outdoor recreation" encompasses all recreational

activities7 which are commonly conducted outdoors. 53 Wn. App. at 364. Indeed,

many of the other activities listed in the statute—swimming, skateboarding, and


     7 It defined recreational activities as those which provide diversions or
amusements. Curran. 53 Wn. App. at 364.


                                             14
No. 73449-1-1/15



rock climbing—may commonly also be conducted both indoors and outdoors.

Playing basketball is a physical activity commonly played outdoors on playgrounds

where basketball hoops have been erected.

       Finally, at the time he was injured, Archer was essentially utilizing a piece

of playground equipment. This is similar to the plaintiff's activity which caused

injury and was determined to be covered by recreational use immunity in Curran.

53 Wn. App. at 365. In Curran. the plaintiff was injured after attempting to hurdle

a T-bar that was intended to be used to stretch calf and hamstring muscles, id at

360. The Curran court characterized the plaintiff's "play" as outdoor recreational

activity and broadly held that RCW 4.24.210 applies to accidents on municipal park

playground and exercise apparatus, id. at 364-65. We similarly hold that playing

basketball outside constitutes a recreational activity that qualifies as "outdoor

recreation" under the statute. Consequently, we hold that RCW 4.24.210 applies

to accidents involving this type of school district playground equipment.

IV.    Exception to Recreational Use Immunity

       On appeal, Archer raises two issues for the first time in his reply brief. First,

he implies that there is a genuine issue of material fact as to whether the exception

to recreational use immunity outlined in RCW 4.24.210(4)(a) applies.              RCW

4.24.210(4)(a) states that recreational use immunity would not protect a landowner

from liability for injuries sustained to users by reason of a known dangerous

artificial latent condition for which warning signs have not been conspicuously

posted. Then, he argues that in order to discern whether this exception applies—




                                              15
No. 73449-1-1/16




whether the Pistrict knew about the dangerous condition of the basketball pole—

he should be afforded additional time to conduct discovery.

      Below, in Archer's memo in opposition to the Pistrict's motion for summary

judgment, he asserted that this statutory exception to recreational use immunity

also precludes summary judgment. The Pistrict responded that even if the pole

was in a dangerous condition, the condition of the pole was not known to the

Pistrict as is required under the exception. Archer asserted that if the trial court

did not dismiss the Pistrict's recreational use immunity defense based on his other

arguments, it should defer ruling on the "known" element in RCW 4.24.210(4)(a).

He claimed it should continue the Pistrict's motion under CR 56(f)8 until the Pistrict

fully answered plaintiffs discovery requests and until the Washington Supreme

Court issued an opinion in a case Archer believed would be dispositive. The

Pistrict responded, arguing that no continuance was justified. Specifically, it
asserted that Archer did not provide a reason for not having conducted discovery

in the matter, which was filed more than a year earlier. It maintained that no

depositions had been taken because Archer did not request any, that Archer did
not request supplemental discovery until after the Pistrict filed its motion for
summary judgment, and that the Pistrict provided supplemental discovery


       8 Under CR 56(f), the trial court has the discretion to allow additional
discovery or grant a continuance to allow a party opposing summary judgment to
obtain information necessary for the required affidavits. A continuance may be
denied if the requesting party does not offer a good reason for the delay in
obtaining the desired evidence, the requesting party does not state what evidence
would be established through the additional discovery, or if the desired evidence
will not raise a genuine issue of material fact. Manteufel v. Safeco Ins. Co. ofAm..
117 Wn. App. 168, 175, 68 P.3d 1093 (2003).

                                             16
No. 73449-1-1/17




responses, but Archer did not request additional time to incorporate that

information into his response to the motion for summary judgment.9 The Pistrict

further noted that Archer has not articulated what evidence would be established

through any additional discovery.

      Then, the Pistrict filed its motion for reconsideration, and Archer did not

request a continuance in his opposition to that motion. In its order granting the

Pistrict's motion for reconsideration, the trial court specifically noted that no

exception to recreational use immunity applied in this case. As a result, it did not

make a ruling on Archer's request for a continuance. And, he did not file a motion

for reconsideration on the issue of a CR 56(f) continuance after the trial court

granted the District's motion for reconsideration.

       On appeal, in his reply brief, Archer argues that the trial court erred when it
denied his CR 56(f) motion for a continuance, because the evidence does not

establish that the District lacked actual knowledge of the structural defects in the

basketball pole before the accident. The District filed a motion to strike these
arguments, asserting that they were improperly raised for the first time in Archer's
reply brief. It argued that RAP 10.3(a)(4) and 10.3(g) require Archer to assign error
to this issue and make related arguments in his opening brief. Archer responded,

       9 The District's attorney submitted a declaration stating that from the time
she first appeared in July 2014 until February 23, 2015, Archer requested no
depositions. She explained that the District provided discovery responses to
Archer on August 21, 2014, the Pistrict filed its motion for summary judgment on
January 29, 2015, and Archer did not claim any deficiencies with the Pistrict's
discovery responses prior to the filing of the motion. She stated that Archer
contacted her on January 30, 2015 to schedule a discovery conference—the day
after the motion for summary judgment was filed—but did not claim any specific
deficiencies in the Pistrict's discovery responses until February 6, 2015.

                                             17
No. 73449-1-1/18




claiming that he raised these issues in his opening brief, because he "assigned

error to the trial court's summary judgment dismissal, which assumed as a matter

of law that the Pistrict did not know about the 'dangerous artificial latent condition'

of its basketball pole."

       But, Archer mentioned neither the applicability of the exception nor the fact

that more discovery was required in his opening brief. His assignment of error to

the trial court's summary judgment dismissal is insufficient to preserve these

issues and arguments.         See RAP 10.3(a)(4) (stating that a separate concise

statement of each error a party contends was made by the trial court, together with

the issues pertaining to the assignments of error must be in the appellant's brief).

An issue is too late to warrant consideration when it is raised and argued for the

first time in a reply brief. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d

801, 809, 828 P.2d 549 (1992). Therefore we do not address these arguments.

 V.    Attorney Fees

       The Pistrict argues it should be awarded attorney fees, because Archer's

appeal is frivolous.       RAP 18.9(a) permits the court to impose sanctions for a

frivolous appeal. An appeal is frivolous if it raises no debatable issues on which

reasonable minds mightdiffer and it is so totally devoid of merit that no reasonable

possibility of reversal exists. Hernandez v. Stender. 182 Wn. App. 52, 61, 358

P.3d 1169 (2014).

       The Pistrict claims that fees are warranted because, "Archer presents no

meritorious argument for the Courtto ignorethe plain language of the [recreational

use immunity] statute." It asserts that the law is clear that public landowners are


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eligible for recreational use immunity. Further, it argues that no reasonable mind

could conclude that an outdoor playground was open to the public for any purpose

other than recreation, or that land on playground facilities or the activity of

basketball is excluded by RCW 4.24.210.

       We conclude that Archer's appeal is not frivolous and, therefore, decline to

award attorney fees to Pistrict.

       We affirm.




WE CONCUR:




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