Some of the many great things about life in Washington State are its spectacular mountains, expansive forests, abundant lakes and the recreational activities they afford. In recognition of Washingtonian’s enthusiasm for outdoor life, the Washington State Legislature enacted the recreational use immunity statute, RCW 4.24.210, so that landowners may open their lands for recreational use and be immunized from liability for unintentional injuries that occur on their land.* Specifically, the statute provides:
[A]ny public or private landowners … 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 … hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, aviation activities … 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.
The Washington State Legislature enacted the recreational use immunity statute with the express intention that it would “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.” RCW 4.24.200 (statement of purpose). “[T]o be immune under RCW 4.24.210(1) the landowner must establish that the [land in question] (1) was open to members of the public (2) for recreational purposes and [that] (3) no fee of any kind was charged.” Cregan v. Fourth Mem’l Church, 175 Wn.2d 279, 284, 285 P.3d 860 (2012). A landowner must also have continuing authority to close the land to the recreating public or else the purpose behind the act would not be advanced – which is to encourage landowners to open land that would not otherwise be open. Tennyson v. Plum Creek Timber Co., 73 Wash.App. 550, 557 – 58, 872 P.2d 524 (1994).
A recent case before the Supreme Court of Washington, Camicia v. Howard S. Wright Const. Co., 317 P.3d 987 (2014), evaluated whether the recreational use immunity statute applied to a portion of Seattle’s I-90 bike trail near Mercer Island. In rejecting the City of Seattle’s position that recreational immunity applied to the I-90 bike trail merely because there was incidental recreational use of that land by cyclists, the court reasoned that “[i]mmunity applies only when a landowner allows the public to use the land for the purposes of outdoor recreation. Where land is open to the public for some other public purpose—for example as part of a public transportation corridor—the inducement of recreational use immunity is unnecessary. It would 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 of that use.” Id. at 998. The court further explained that “extending the reach of RCW 4.24.210 to land that is open to the public for purposes other than recreation simply because some recreational use occurs not only undermines the statute’s plain language and the legislature’s intent but would also unjustly relieve [landowners such as] the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel.” Id. at 994.
Ultimately, the Supreme Court found that reasonable minds could differ on whether the I–90 bike trail was open to the public for the purpose of recreational use since bicycling serves a dual purpose of recreation and commuter transportation. Accordingly, the case was remanded back to the trial court to further develop the factual record on this issue.
If you or your business have questions regarding premises liability or application of Washington’s recreation use immunity statute, contact Kyle Silk-Eglit or one of the experienced real estate attorneys at MPBA.
* Such landowners remain liable for intentional injuries on their land and injuries which result from a known dangerous artificial latent condition for which warning signs have not been conspicuously posted. RCW 4.24.210(4)(a).