WA Supreme Court: Definition of Latent in Recreational Use Statute Does Not Include Easily Photographable Objects
In the recent Washington Supreme Court opinion in Steven Jewels v. City of Bellingham, the Court interpreted and applied the Recreational Use Statute, RCW 4.24.210. In short, the statute states that landowners who open their land to the public for recreational purposes, free of charge, are generally not liable for unintentional injuries to such users. However, the statute creates an exception where an injured party may overcome this immunity by showing either: (1) a fee for the use of the land [was] charged; (2) the injuries were intentionally inflicted; or (3) the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis v. State, 144 Wn.2d 612, 616 (citing RCW 4.24.210(1), (3)). When applying the third exception, all four elements (known, dangerous, artificial, latent) modify the word “condition” and must be present in the injury-causing condition for liability to attach to the landowner.
In determining whether an unpainted portion of a speed bump (otherwise painted yellow) which acted as a water diverter was “latent” under the statute, the Court clarified the line between a latent and an obvious defect:
[W]e derive the following principles on latency: if 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, the condition is obvious (not latent) as a matter of law. The latency of the condition 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. . . .
[T]he fact that the condition can be easily photographed is an acknowledgment that the condition is obvious.
As a result, the Court upheld summary judgment dismissal of the plaintiff’s cause of action against the City.