                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                            February 23, 2016
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

    JOHN A. HIVELY,                                                     No. 46875-1-II

                                 Appellant,                      UNPUBLISHED OPINION

          v.

    PORT OF SKAMANIA COUNTY,
    WASHINGTON, a Washington municipal
    corporation,

                                 Respondent.

         SUTTON, J. — John A. Hively appeals the trial court’ s order granting summary judgment,

denying reconsideration, and dismissing his negligence claim against the Port of Skamania County

the Port) for injuries caused by his fall in one of the Port’ s parks, Teo Park. Hively argues that

the trial court erred in ruling that the Port is entitled to immunity under the recreational use statute,

former RCW 4.24.210(1) (2009), 1 because material issues of fact exist as to whether the place that

he fell was sufficiently attenuated from the fee-generating areas of the Port’ s properties and

whether there was a latent condition. Because we disagree, we affirm the trial court’ s order

granting summary judgment and dismissal.

                                                FACTS

         Hively traveled to Teo Park in Stevenson, Washington, a property owned by the Port on

the Columbia River waterfront. Teo Park is physically connected to two other Port properties,




1
 RCW 4.24.210 was amended in 2011 and 2012, although those changes do not have any effect
on our analysis.
No. 46875-1-II

Bob’ s Beach and Stevenson Landing, by an asphalt path. There is a restroom along this path,

which has a second path that is not at issue here that also provides access to the restroom.

       Hively headed down the asphalt path, which was shaded by trees. After a few steps, Hively

tripped and fell onto the path, injuring himself. In his deposition testimony, Hively stated that

when he fell he was looking straight ahead, and he did not see the pothole due to a shadowed area

created by the bright sun. Hively expected that the path would be hazard -free, and before he fell

he did not notice any potholes or irregularities on the path.

       The Port does not charge a fee to enter Teo Park, Bob’ s Beach, or Stevenson Landing, and

they are open to the public. The restroom is also open to the public, except during the winter

season when it is closed. Occasionally, the Port rents Teo Park to private parties for a fee, but the

path along the waterfront and the restroom remain open to the public while the park is rented. The

Port also charges cruise ships a fee to dock at the pier at Stevenson Landing, but again the pier

remains accessible to the public without a fee even when ships are docked there.

       The path along the waterfront on the way to the restroom, where Hively fell, was paved

with asphalt in 1997, but over time the surface of the path had become broken and irregular. The

Port knew about the condition of the path, but did not consider it to be dangerous because the

irregularities were “open and obvious and consistent with other rough or natural trails on Port park

property.” Clerk’ s Papers at 54 ( CP). Prior to Hively’ s fall, the Port had not installed signs

warning of the path’ s conditions. Hively’ s lawsuit was the first time the Port had heard of a person

tripping on this particular path.

       Hively sued the Port for negligence. The Port moved for summary judgment, arguing that

it was entitled to recreational use immunity under former RCW 4.24.210. Hively cross-moved for

summary judgment. The trial court granted the Port’ s motion for summary judgment, denied



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No. 46875-1-II

Hively’ s motion, dismissed Hively’ s claim with prejudice, and denied Hively’s motion for

reconsideration. Hively appealed.

                                            ANALYSIS

I. STANDARD OF REVIEW

       We review a trial court’ s grant of summary judgment de novo and engage in the same

inquiry as the trial court. Wash. Fed. v. Harvey, 182 Wn.2d 335, 339, 340 P.3d 846 ( 2015).

Summary judgment is proper where, viewing the facts in the light most favorable to the nonmoving

party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” CR 56(c). When the supporting facts are

undisputed, the trial court may determine immunity as a question of law. Camicia v. Howard S.

Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014). We review a trial court’ s ruling

on a motion for reconsideration for abuse of discretion. Landstar Inway, Inc. v. Samrow, 181 Wn.

App. 109, 120, 325 P.3d 327 (2014).

II. RECREATIONAL USE IMMUNITY

       Hively argues that the Port is not entitled to summary judgment because the Port is not

immune from suit under the recreational use immunity statute, former RCW 4.24.210. We

disagree.

       Under former RCW 4.24.210, landowners who allow the public to use their land for

recreational purposes without charging a fee are immune from suit for unintentional injuries that

occur on the land. Former RCW 4.24.210(1) creates an exception to common law invitee premises




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No. 46875-1-II

liability.2 Camicia, 179 Wn.2d at 694. The purpose of recreational use immunity is to encourage

landowners and those in lawful possession of land to make it available to the public for recreational

purposes by limiting their liability. RCW 4.24.200; Jewels v. City of Bellingham, 183 Wn.2d 388,

394, 353 P.3d 204 (2015).

         To be entitled to immunity under the recreational use statute, the landowner must prove

that the land in question is (1) open to members of the public, (2) for recreational purposes, and

3) for which “‘ no fee of any kind [is] charged.’” Camicia, 179 Wn.2d at 695-96 (quoting Cregan

v. Fourth Mem’ l Church, 175 Wn.2d 279, 284, 285 P.3d 860 (2010)). The landowner bears the

burden to prove entitlement to immunity because recreational use is an affirmative defense.

Camicia, 179 Wn.2d at 693. Hively concedes that the Port meets the first and second elements,

but argues that the Port fails to meet the third element because the Port charges a fee to cruise ships

to dock at Stevenson Landing and to parties who wish to exclusively rent Teo Park.

         A landowner may charge a fee to use part of its land and maintain immunity for recreational

use of the remainder of the land. Plano v. City of Renton, 103 Wn. App. 910, 914, 14 P.3d 871

2000). To maintain recreational use immunity and charge a fee, “[ a] landowner must only show

that it charges no fee for using the land or water area where the injury occurred.” Plano, 103 Wn.

App. at 915. A landowner is not entitled to immunity when the place that the injury occurred is a

    necessary and integral part” of the fee-generating area. Plano, 103 Wn. App. at 915. It is




2
  Any public or private landowners or others in lawful possession and control of 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, including but not limited to camping, picnicking,
swimming, hiking, bicycling, or viewing or enjoying scenic sites without charging a fee of any
kind, shall not be liable for unintentional injuries to such users. See former RCW 4.24.210(1)
 emphasis added).

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No. 46875-1-II

undisputed that the Port does not charge a fee for public use of either the path where Hively fell or

the restroom to which the path led.

       Hively relies on Plano to argue that the path where he fell was a necessary and integral part

of the Port’ s fee-generating areas ( i.e., the pier and Teo Park itself when it is rented exclusively)

as a matter of law. In Plano, anyone who used the dock, the fee-generating area in that case, was

required to use one of two connecting ramps that led to the dock where Plano’ s injury occurred.

Plano, 103 Wn. App. at 915. The ramps had been built specifically to provide access to the dock

and a paying patron could not pay the required fee without walking up one of the ramps. Plano,

103 Wn. App. at 915. Thus, the Plano court held that the undisputed facts established that the

ramps were a necessary and integral part of the dock and the City of Renton was not entitled to

immunity when a non-paying user injured herself on one of them. Plano, 103 Wn. App. at 915.

       The facts of this case are not analogous to Plano. A person is not required to pay for or

use either the path or the restroom as a part of any paid access for or use of either Teo Park or the

pier. Hively concedes that it is unnecessary for a person to reach the restroom by walking on the

path where he fell because another path also provides access to the restroom from the pier. No

evidence suggests that the path where Hively’ s injury occurred was constructed specifically for

the purpose of providing access to the Port’ s fee-generating areas. While John McSherry, the

executive director of the Port, agreed that the restroom is “a key part” of Teo Park and that it is an

 important part of all of the recreation activities that occur on the waterfront,” this fact is

undisputed and thus the trial court could determine the issue of immunity as a matter of law.

CP at 111, 204. Therefore, following the reasoning of Plano, there is no genuine issue of material

fact that the path or the restroom were an integral part of the Port’ s fee-generating areas and the




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No. 46875-1-II

trial court properly granted summary judgment to the Port under former RCW 4.24.210.3

Necessarily, the trial court also properly denied Hively’s motion for reconsideration.

III. LATENT CONDITION

          Hively also argues that the trial court improperly granted summary judgment in favor of

the Port because a question of fact remained on whether the condition of the path where Hively

fell was latent. We disagree.

           Nothing in [former RCW 4.24.210] 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.” Former

RCW 4.24.210(4)(a). Our Supreme Court also recently clarified that for a plaintiff to hold a

landowner liable under former RCW 4.24.210(4)(a), the condition must satisfy a known,

dangerous, artificial, and latent condition and that each of these four adjectives “ modify the noun

    condition] independent of one another.” Jewels, 183 Wn.2d at 397 (citing Van Dinter v. City of

Kennewick, 121 Wn.2d 38, 45 n.2, 846 P.2d 522 (1993)). Thus, the landowner owes a duty to

public invitees to warn of latent conditions even if the landowner is entitled to immunity for

recreational use. Camicia, 179 Wn.2d at 702. While the Port knew that the surface of the path

had become irregular and “ consistent with other rough or natural trails on Port park property,” this

lawsuit was the first time that the Port had any knowledge of a person tripping on this path.

CP at 54.




3
  While the trial court stated, “ My finding is that the restroom can be reached by other access
routes. And . . . the path does not exist to provide access to the pier or park,” contrary to Hively’ s
argument, the use of the word “ finding” does not transform an issue of law into an issue of fact.
Verbatim Report of Proceedings at 10-11. Furthermore, to the extent the trial court actually made
a finding of fact by using that word, Hively did not object, and therefore he has waived that issue.
RAP 2.5(a).

                                                  6
No. 46875-1-II

          A condition is latent when it is not readily-apparent to the recreational user of the land.

Jewels, 183 Wn.2d at 398. Whether the plaintiff noticed the condition is irrelevant to this objective

inquiry. Jewels, 183 Wn.2d at 398 (what one particular recreational user sees “‘ is immaterial’”)

quoting Widman v. Johnson, 81 Wn. App. 110, 114-15, 912 P.2d 1095 (1996)). Instead, we ask

    whether the condition is readily apparent to the general class of recreational users.”   Jewels,

183 Wn.2d at 398. We focus on whether the condition itself is readily apparent to recreational

users, rather than the “ specific risk” that the condition poses. Ravenscroft v. Water Power Co.,

136 Wn.2d 911, 925, 969 P.2d 75 (1998). We analyze the condition in the context of other factors

and not the condition in isolation.       Cultee v. City of Tacoma, 95 Wn. App. 505, 516-17,

977 P.2d 15 (1999).

          Hively cites Ravenscroft and Cultee to support his argument that the issue of latency is a

genuine issue of material fact here. But in Ravenscroft the injury-causing condition, submerged

stumps covered by water that concealed them, created a genuine issue of fact on whether the

condition was latent.4 Ravenscroft, 136 Wn.2d at 925-26. Similarly, in Cultee, the injury-causing

condition, the muddy water on the road hiding the eroded edge and the steep drop off into the deep

adjacent water, was not readily apparent.5       Cultee, 95 Wn. App. at 522.      Thus, neither the

Ravenscroft court nor the Cultee court could say that the condition was obvious as a matter of law.



4
  The submerged stumps near the middle of the channel were not obvious or visible as a matter of
law when the driver of a boat saw no floating debris or stumps of any kind in the water and there
was no indication of the presence of any submerged objects or hazards in the direction he was
traveling. Ravenscroft, 136 Wn.2d at 916. Further, other witnesses filed affidavits that they had
seen others come into contact with the submerged condition, which indicated that they were not
readily apparent. Ravenscroft, 136 Wn.2d at 925.

5
  Cultee also presented a genuine issue of material fact regarding precisely what condition led to
the plaintiff’ s death. Cultee, 95 Wn. App. at 523. This issue was central to the appellate court’ s
holding that summary judgment was improper based on the latency question. No such question
exists in this case.

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No. 46875-1-II

        No such analogous facts exist in this case. Hively testified that he did not see the pothole

when he was looking straight ahead as he walked, and he was not expecting a hazard to be on the

path. But, unlike the plaintiffs in Ravenscroft and Cultee, Hively did not present any evidence that

the pothole was not readily apparent to the general class of recreational users. No evidence

suggests that the pothole was physically submerged, as in Ravenscroft, or otherwise covered or

hidden, as in Cultee. Thus, there is no genuine issue of material fact regarding latency in this case.

Therefore, the trial court properly granted summary judgment in favor of the Port and properly

denied Hively’ s motion for reconsideration.

                                          CONCLUSION

        We hold that the trial court properly granted summary judgment to the Port because no

genuine issue of material fact existed on whether the Port was entitled to immunity or whether the

pothole was a latent condition. Therefore, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                      SUTTON, J.
 We concur:



 BJORGEN, A.C.J.




 MELNICK, J.




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