A bicyclist riding in a city park attempted to steer around a speed bump. The speed bump was painted yellow. The City had placed an asphalt berm between the speed bump and the curb in order to divert water. The berm was about one inch shorter than the speed bump. It was not pained.
The bicyclist did not see the berm. He did not expect the jolt from the berm. The bicycle’s front tire struck the curb. The bicyclist was thrown onto the curb and injured.
The bicyclist sued the City of Bellingham for personal injury.
The City moved for summary judgment dismissal under the Recreational Use Statute. Under the statute, landowners who open their property for recreational use free of charge are immune from liability when visitors injure themselves. This statutory immunity does not apply to “injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.”
For this exception to immunity under the Recreational Use Statute to apply, the injured person must prove that the landowner knew about the condition. The injured person does not need to show that the landowner knew that the condition was dangerous, only that the landowner knew the injury-causing condition existed.
The injured person must also show that the dangerous condition was latent.
The trial court granted the motion to dismiss. The court found that the City did not know the condition was dangerous, and also found that the condition was obvious and not latent. The Court of Appeals affirmed.
The Washington Supreme Court made it clear the injured party does not have to prove that the landowner knew that the condition that caused the injury was dangerous. The injured party need only prove that the landowner knew the condition existed. Here, the City built the berm, so the City had knowledge that it existed.
The injured party must also show that the condition was latent. The City had taken photographs of the berm. The berm could be seen in photographs. Interestingly, the photographs were taken after the City had painted the berm yellow to match the speed bump. The Court majority concluded that the berm—only and inch shorter than the speed bump—was readily apparent. The Court majority upheld dismissal.[1]
In a dissenting opinion signed by four justices, the dissenters agreed that in the Recreational Use Statute the term “known” modifies only “condition” and does not modify “dangerous.” The dissent concluded that the majority should have examined whether the typical bicyclist would have seen the berm, not whether someone standing still near the berm would have seen it. The dissent disagreed with the trial court’s dismissal.
While the majority upheld the dismissal of the bicyclist’s personal injury claim, all nine justices agreed that under the Recreational Use Statute a personal injury claimant is required to prove that the landowner knew the injury-causing condition existed, but the personal injury claimant need not prove that the landowner knew the injury-causing was dangerous.
By personal injury attorney Travis Scott Eller
[1] Jewels v. City of Bellingham, ____ Wn.2d ____ (No.90319-1 June 11, 2015).