No. 19542-2-III.The Court of Appeals of Washington, Division Three. Panel Ten.
Filed: May 10, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Benton County, No. 98-2-02135-4, Hon. Philip M. Raekes, August 9, 2000, Judgment or order under review.
Counsel for Appellant(s), George Fearing, Leavy Schultz Davis
Fearing, 2415 W Falls Ave, Kennewick, WA 99336.
Counsel for Respondent(s), Gerald J. Moberg, Law Office of Jerry Moberg, 1230 Berschauer Industria, Ephrata, WA 98823.
Dalton L. Pence, 600 Kitsap St #202, Port Orchard, WA 98366.
KENNETH H. KATO, J.
Adriana Rios was injured on a school playground. Along with her parents, Hermilio and Elizabeth, she sued the Kennewick School District for damages associated with her injuries. The District claimed immunity under Washington’s recreational use statute, RCW 4.24.210, and moved for summary judgment. The court agreed and dismissed the complaint. Finding that questions of fact exist, we reverse. On July 1, 1998, Adriana was playing with several children on the playground at Edison Elementary School in Kennewick, Washington. Near the play area was a 375-pound soccer goal that was not anchored to the ground. Several boys tried to lift the goal, but it was too heavy. They dropped it on Adriana’s leg, breaking it.
The Rioses sued the Kennewick School District for damages based on its negligence for not having the soccer goal anchored to the ground. Claiming immunity under RCW 4.24.210, the District moved for and was granted summary judgment. Summary judgment is appropriate “if 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.” Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 278, 937 P.2d 1082 (1997) (quoting CR 56(c)). When reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. Id.
At issue is whether the District is shielded from liability by RCW 4.24.210. The recreational use statute was enacted to encourage landowners to make their lands available to the public for recreational purposes by limiting the liability of the landowners toward users of those lands. See RCW 4.24.200. The immunity portion of the statute provides:
(1) Except as otherwise provided in subsection (3) of this section, 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, 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, hanggliding, paragliding, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, 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.
RCW 4.24.210(1).
The Rioses argue RCW 4.24.210 does not apply because Adriana was not using the playground for `outdoor recreation.’ `Outdoor recreation’ includes a park’s play and exercise areas. See Partridge v. City of Seattle, 49 Wn. App. 211, 741 P.2d 1039 (1987) (swimming area); Preston v. Pierce County, 48 Wn. App. 887, 741 P.2d 71 (1987) (park merry-go-round), overruled on other grounds by Van Dinter v. City of Kennewick, 121 Wn.2d 38, 846 P.2d 522 (1993); Riksem v. City of Seattle, 47 Wn. App. 506, 736 P.2d 275 (1987) (accident on recreational trail), review denied, July 1, 1987. `Outdoor recreation’ encompasses all recreational activities that are commonly conducted outdoors. Curran v. City of Marysville, 53 Wn. App. 358, 364, 766 P.2d 1141, review denied, 112 Wn.2d 1020 (1989). Recreational activities are those that “provide diversions or amusements.” Id. (quoting Webster’s Third New International Dictionary 1899 (1971)). The feature common to all the examples of `outdoor recreation’ listed in the statute is that they are activities requiring the outdoors. Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 438, 824 P.2d 541, review denied, 119 Wn.2d 1011
(1992). Aside from the exception for `viewing or enjoying historical, archaeological, scenic, or scientific sites,’ the activities listed are those which are physical in nature and require the active involvement of the person using the land. Id.
Adriana was playing at the school playground with several other children when the accident happened. Her activities were physical in nature, required her participation, and were what would be expected on an outdoor playground. The school play area is similar to a park or exercise area. Adriana’s activities were `outdoor recreation.’[1] RCW 4.24.210(1) applies.
But the District’s immunity from liability ultimately depends on whether or not the exception in RCW 4.24.210(3) is applicable. RCW 4.24.210(3) provides:
Nothing in this section shall prevent the liability of such 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.
To trigger this exception, each of the four elements — known, dangerous, artificial, and latent — must be present in the alleged injury-causing condition. Davis v. State, 102 Wn. App. 177, 185, 6 P.3d 1191
(2000), review granted, 142 Wn.2d 1016 (2001). Each of the elements modifies the term `condition,’ not one another. Id.
The injury-causing condition is `the specific object or instrumentality that caused the injury, viewed in relation to other external circumstances in which the instrumentality is situated or operates.’ Id. (quoting Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 921, 969 P.2d 75 (1998)). A court must identify the injury-causing condition before it can determine if that condition was known, dangerous, artificial, or latent. Id. at 185-86. Here, Adriana was injured when several boys tried to lift a 375-pound soccer goal and dropped it on her leg. Therefore, the injury-causing condition was the soccer goal, viewed in relation to its ability to be moved.
The first requirement for triggering the exception is that the condition be known to the landowner. RCW 4.24.210(3). In order for a condition to be `known,’ the landowner must have actual, rather than constructive, knowledge that a dangerous, latent condition exists. Tabak v. State, 73 Wn. App. 691, 696, 870 P.2d 1014 (1994). This element can be established by circumstantial evidence. Id. If actual knowledge is denied, the plaintiff must come forward with evidentiary facts from which a trier of fact could reasonably infer actual knowledge by a preponderance of the evidence. Id.
The District was aware that the soccer goal was on the field at Edison School. It took steps to make soccer goals safe as evidenced by its designing the goal in question to be `tip-proof.’ If the goal did not pose a known danger, there would be no need for such a design. It was also acknowledged that several of the District’s soccer goals were anchored to the ground. From this evidence, which must be viewed in a light most favorable to the nonmoving party, it could be reasonably inferred that the District had actual knowledge that soccer goals were dangerous. The Rioses submitted sufficient evidence to raise a question of fact as to this element.
The condition, the soccer goal, must be dangerous. A condition is dangerous if it poses an unreasonable risk of harm. Tabak, 73 Wn. App. at 697. The soccer goal in question here weighed 375 pounds and could not be moved easily. Several boys were nevertheless able to lift the goal off the ground. Although not anchored to the ground, the goal was designed to be `tip-proof.’ An expert opined that any soccer goal not anchored to the ground is dangerous. In these circumstances, whether the goal was dangerous is a question to be decided by the trier of fact.
The soccer goal must also be artificial. A condition is artificial if it is man-made. See Ravenscroft, 136 Wn.2d at 923. The man-made soccer goal was indeed artificial.
Last, the condition must be latent. The question is whether the condition is readily apparent to the general class of recreational users, not whether a particular user might fail to discover it. Ravenscroft, 136 Wn.2d at 924. The condition itself must be latent. Cultee v. City of Tacoma, 95 Wn. App. 505, 522, 977 P.2d 15, review denied, 139 Wn.2d 1005 (1999). A landowner will not be held liable when a `patent condition posed a latent, or unobvious, danger.’ Id. (quoting Van Dinter, 121 Wn.2d at 46). Latency is a factual question that usually must be decided by a jury. Id.
In Cultee, a young girl drowned at the Nalley Ranch owned by the city. There was a levee along the edge of the ranch that held back the waters of Hood Canal. The levee broke, flooding part of the east side of a road on the ranch at high tide. Cultee, 95 Wn. App. at 508. The victim, with her two cousins, visited the ranch and stopped to check the water’s depth along the side of the road at a point where there was no water on the road itself. Thereafter, the road became covered with two to four inches of muddy water. The victim rode her bicycle over about eight feet of the road when she got off to turn around. As she was getting back on her bicycle, she got too close to the edge and fell in. Id. at 510. The court found a question of fact existed as to whether the condition was latent. It was not clear if the road edge was apparent when the victim fell into the water. There was also a question of fact as to whether the victim was killed by the depth of the water alone, or a combination of the water obscuring the edge of the road and an abrupt drop into deep water. Id. at 522-23. The court accordingly determined summary judgment was inappropriate.
Like Cultee, this case raises questions of fact regarding the latency of the condition. Reasonable minds could differ on whether Adriana or the other children were aware that the soccer goal posed a danger. The boys’ inability to lift and hold the goal up caused the accident. Whether the accident was caused by the boys doing something they knew they were unable to do and/or because the goal was not anchored to the ground are questions on which reasonable minds could reach different conclusions. Questions of fact exist that necessitate trial.
To trigger the exception to immunity, the injury-causing condition must be known, dangerous, artificial, and latent. RCW 4.24.210(3). There can be no dispute that the soccer goal was artificial. Fact questions exist with respect to the other three elements. Therefore, the court erred by granting summary judgment. In light of our resolution of the case on this ground, we need not reach other issues raised by the Rioses. Reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: KURTZ, C.J., BROWN, J.