       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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TUKWILA SCHOOL DISTRICT,                          UNPUBLISHED OPINION                  ro
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                     Respondent.                  FILED: October 12, 2015


       Becker, J. — Elizabeth Olson appeals the order granting summary

judgment in favor of the Tukwila School District and dismissing her premises

liability action. Because the District has immunity under the recreational use

immunity statute, we affirm.

       This case arises from an injury that Olson incurred while at the athletic

facility at Foster High School, a public high school in the Tukwila School District.

Foster High School's athletic facility includes a running track. One day in April

2012, Olson visited Foster High School to use the running track as she had done

on many occasions in the past. To get to the track, she took a different route

than on prior occasions, one that required her to step down from the bleachers

onto the track. Olson did not accurately perceive the rise that separated the
No. 72865-2-1/2



bleachers from the track surface. As she took the step, she fell and injured her

ankle.

         Olson sued the District. The District moved for summary judgment. The

trial court granted the motion based on RCW 4.24.200-.210, the recreational use

immunity statute. This appeal followed.

         We review a grant of summary judgment de novo, performing the same

inquiry as the trial court. Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780,

787, 108 P3d 1220 (2005). Summary judgment is appropriate only 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 the facts are undisputed,

immunity is a question of law for the court. Camicia v. Howard S. Wright Const.

Co.. 179 Wn.2d 684, 693, 317 P.3d 987 (2014).

         Washington's recreational use immunity statute, RCW 4.24.210, defines

circumstances under which a landowner is immune from suit for unintentional

injuries to users:

         Except as otherwise provided in subsection (3) or (4) of this
         section, any 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 . . . without
         charging a fee of any kind therefor, shall not be liable for
         unintentional injuries to such users.

RCW 4.24.210(1).

         To be immune, the landowner must establish that the use (1) was open to

members of the public (2) for recreational purposes and that (3) no fee of any

kind was charged. Because recreational use immunity is an affirmative defense,
No. 72865-2-1/3



the landowner has the burden of proving it applies. Cregan v. Fourth Mem'l

Church, 175 Wn.2d 279, 283-84, 285 P.3d 860 (2012).

                      USE BY "MEMBERS OF THE PUBLIC"

       Olson does not dispute that use of the track is a recreational activity. She

does dispute whether the use was open to members of the public. On that issue,

Cregan is instructive. There, the Supreme Court defined "public" as "'[ojpen or

available for all to use, share, or enjoy.'" Cregan, 175 Wn.2d at 285 (alteration in

original), quoting Black's Law Dictionary 1348 (9th ed. 2009). The court also

explained that depending on the specific facts at hand, landowners may restrict

some access and still qualify for recreational use immunity. For example, a

landowner that permits the public to hike or picnic may prohibit the public from

hunting on its land. A landowner may allow public access only during

nonbusiness times. A restriction that allows minor children on the land only if

accompanied by an adult may also be appropriate. In such cases, the land is still

held open to the public. Cregan, 175 Wn.2d at 285-86.

       But the land is no longer open to the public if the landowner restricts

access by discriminating against the user based on personal traits. In Cregan.

the landowner did not qualify for recreational immunity because the invitation to

enter the land depended on the user's religious affiliation. "When an owner

excludes people in this way—that is, has a selective invitation to enter the land—

the land is no longer open to the public, that is, for all to use or enjoy." Cregan,

175Wn.2dat286.
No. 72865-2-1/4



       The Tukwila School District limits the invitation to use the track in a

number of ways that clearly pass muster under Cregan. For example, the track

is open to the public only before and after school hours. One posted sign

excludes weapons, drugs, alcohol, tobacco, motorized and wheeled vehicles,

skateboarding, loitering, and criminal trespass. Another sign, while stating that

wheelchairs are allowed, disallows pets (other than service animals), cleated

shoes, and food and drink other than water. These restrictions do not, under

Cregan, transform the facility into one that is not open to the public.

       The closer question is a restriction limiting public use of the track to

"Tukwila citizens" who have obtained an access card at the school district office.

       The facility's main entrance gate has an access card reader. One posted

sign limits access to "Authorized Card Holders Only," and another sign states

that "Tukwila citizens" may obtain an access card. Olson contends that by

reserving the right to deny access to Tukwila citizens, the District has issued a

selective invitation.


       There is no evidence in the record that the policy restricting use of the

track to cardholders is based on a personal trait. Everyone in the Tukwila

community had the same opportunity to obtain an access card. A District

employee testified in a deposition that to obtain an access card, Tukwila citizens

have to provide identification and complete a two-page application. Access cards

are issued the same day. The employee testified that in her 12 years working for

the District, she has never denied an application.
No. 72865-2-1/5



       While it is possible to imagine circumstances under which it might be

considered discriminatory to restrict use on the basis of where the user lives,

based on the specific facts of this case, a reasonable trier of fact could only

conclude that the facility was open to members of the public.

                                A FEE OF ANY KIND

       The other disputed element of recreational use immunity is whether the

District allowed public use without charging "a fee of any kind therefor." The

District did not charge Olson a fee to use the running track. Access cards were

free of charge. The District did, however, occasionally charge fees for

organizations and groups to use all aspects of the athletic facilities, including the

track, artificial turf, announcer, control booth, custodian, field supervisor, police

security, and scoreboard. For use of the track only, the District has charged fees

on seven occasions in the past five years.

       Olson contends that the charging of fees in these instances precludes

immunity. She argues that the District is not immune if any fee was ever charged

for use of the athletic facility. She relies on a case from the Oregon State

Supreme Court, Coleman v. Oregon Parks & Recreation Department. 347 Or. 94,

217 P3d 651 (2009). In that case, the plaintiff paid a fee for a campsite in a park.

While in the park, he was injured on a bike trail where the public was free to ride.

Oregon's immunity statute applied only if the landowner "makes no charge for

permission to use the land." Former ORS 105.688(2)(a) (2001). The Supreme

Court of Oregon denied immunity to the parks department because of the charge

to use a campsite. Under Coleman, the landowner is entitled to immunity only if
No. 72865-2-1/6



there is no charge for using any part of the land. It makes no difference if the

injured person was engaged at the time of the injury in a use for which no fee

was charged. Coleman, 347 Or. at 102-03.

       In Washington, on the other hand, a landowner can charge a fee for public

use of a portion of its recreational land without necessarily losing immunity for

public use of the remainder. Piano v. City of Renton. 103 Wn. App. 910,914-15,

14 P.3d 871 (2000). The inquiry under our statute is whether landowners allow

members of the public to use their lands for recreational purposes "without

charging a fee of any kind therefor." RCW 4.24.210(1).

       In Piano, the plaintiffwas injured when she slipped and fell on a ramp

leading to a moorage dock in a city park. Renton did not charge users a fee to

enter the park or to use most of the park's facilities, but it did charge a fee for

overnight moorage. We identified the issue as whether Renton charged a "fee of

any kind" for use of the land where the injury occurred. The moorage was

available for members of the public to use for purposes of outdoor recreation.

"Under the statute, immunity is available only if Renton does not charge a fee of

any kind for such use." Piano, 103 Wn. App. at 914 (emphasis added). Because

Renton did charge a fee for overnight moorage and the plaintiff was injured while

using the moorage, the city was not entitled to recreational use immunity.

       In this case, the use in question is an individual's use of the running track,

not an event that commandeered the entire stadium. Occasionally, fees were

charged for the use of the track alone by organized groups on scheduled dates, a

use that might involve the District in planning, supervision, and cleanup. These
No. 72865-2-1/7



fees included rental fees, security fees, custodial fees, utility fees, and

administrative fees as would be appropriate. No fee was ever charged to

individual members of the public who made unscheduled use of the running

track. On the specific facts of this case, the District was not liable for

unintentional injuries to "such users" because such use by individual members of

the public was always free.

                                      LATENCY


       Landowners who are immune are generally not liable for unintentional

injuries. But an injured party may overcome immunity by showing that the

injuries were sustained "by reason of a known dangerous artificial latent condition

for which warning signs have not been conspicuously posted." RCW

4.24.210(4)(a); Jewels v. City of Bellingham. 183 Wn.2d 388, 390, 353 P3d 204

(2015). An injury-causing condition is "latent" if it is not readily apparent to the

recreational user. The condition itself, not the danger it poses, must be latent.

The dispositive question is whether the condition is readily apparent to the

general class of recreational users, not whether one user might fail to discover it.

This is an objective inquiry. Jewels, 183 Wn.2d at 398.

       Olson contends that the condition is latent because the concrete step

where her injury occurred blends into the track, making the danger invisible from

her perspective as someone coming down from the bleachers. She points out

that there were no distinctive markings to call attention to the unexpectedly high

drop-off. She admits that a step was expected but argues that she did not expect

one so high.
No. 72865-2-1/8



       Latency does not depend on the vantage point of the recreational user.

Tennyson v. Plum Creek Timber Co.. 73 Wn. App. 550, 555, 872 P2d 524, review

denied, 124 Wn.2d 1029 (1994). Latency is not based on the particular activity

the recreational user is engaged in or the particular user's experience with the

area from earlier visits or expertise in the specific recreational activity. The

relevant inquiry is whether an ordinary recreational user standing near the injury-

causing condition "could see it by observation, without the need to uncover or

manipulate the surrounding area." Jewels. 183 Wn.2d at 400; see also Van

Pinter v. City of Kennewick, 121 Wn.2d 38, 46, 846 P2d 522 (1993) (when the

condition itself is patent, the statute's requirement of latency is not satisfied by

showing that the danger presented is latent).

       There can be no dispute that an ordinary recreational user standing near

the concrete step could see it. Photographs in the record confirm that the

change in elevation between the bleachers and the track field would be obvious

to the ordinary recreational user. See Jewels, 183 Wn.2d at 400. As a matter of

law, the condition was not latent.

       The District has met its burden of showing that the recreational use

immunity statute applies. Olson has not presented facts that overcome this

immunity. We need not address the District's alternative argument that summary

judgment is appropriate on the basis that the District did not breach its duty.

       Affirmed.
No. 72865-2-1/9




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WE CONCUR:




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