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ISSAQUAH LAW GROUP

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COMMUNITY: In addition, the Lawyers at Issaquah Law Group remain active in the legal and civic community. A core commitment of our Issaquah Attorneys is community service. Our attorneys' civic involvement includes the King County Civil Rights Commission; the City of Issaquah Planning Policy Commission; the Northwest Screenwriters Guild, service as a pro tem judge. We live and work in the Pacific Northwest, and we aim to make it a better place.

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Division II: Restrooms Open to All Not Integral to Dock or Rental Spaces at Park Under Recreational Use Statute

Hively v. Port of Skamania County

Under standard tort principles, if you are aware of a hazardous condition on land and do not correct it within a reasonable time, you can be liable for injuries occurring because of that hazardous condition.

An exception to this is found in the Recreational Use Statute. If you open your land to the public, without a fee, and someone is injured, you cannot be held liable. 

In this case, the Port operated a park. You could rent out part of the park for a fee, or you could dock at the port for a fee as well. At issue was whether charging a fee for docking or for rental took the property at issue out of the recreational use statute. The area of the property here, where the Plaintiff had tripped and fallen, was open to the public without fee regardless of whether or other areas of the park were rented. 

The case law on this is fairly well-settled:

A landowner may charge a fee to use part of its land and maintain immunity for recreational use of the remainder of the land. Plano v. City of Renton, 103 Wn. App. 910, 914, 14 P.3d 871 (2000). To maintain recreational use immunity and charge a fee, “[a] landowner must only show that it charges no fee for using the land or water area where the injury occurred.” Plano, 103 Wn. App. at 915. A landowner is not entitled to immunity when the place that the injury occurred is a “necessary and integral part” of the fee-generating area. Plano, 103 Wn. App. at 915. It is undisputed that the Port does not charge a fee for public use of either the path where Hively fell or the restroom to which the path led.

So what is integral. Well in Plano, ramps leading to a dock were an integral part of the dock, for which a fee was charged. Here, there is no such thing. The restrooms and the paths to them, where Plaintiff fell, were not integral to the port's docking. The restrooms and surrounding path were an integral part of both the fee generating portion of the park, as well as the non-fee generating portion. However, the bathroom was not designed to serve the fee generating portions, it was provided for the general recreation. As such, it fell within the recreational use statute.

As cities, counties, and developers work towards integration, these kinds of distinctions are going to play more and more into whether immunity can be granted. It may become important in the future to segregate off areas open to the public without fee in order to obtain the full benefit of the statute.

The rest of the opinion dealt with whether the condition, here uneven surfaces, was latent (not discoverable). Prime examples of this include submerged stumps or muddy water which hid the edge of a road. This means the Plaintiff has to provide evidence the uneven surface was not readily apparent, as it is an exemption to the recreational use statute. It was not hidden or submerged, and thus there was no evidence of latency in the record.

As such, Hivey's claims were dismissed as a matter of law.

Issaquah Law Group has extensive experience defending premises liability claims, both under the recreational use statute, as well as under common law tort principles. Please contact our Issaquah Attorneys should you have a question on Washington Law or an issue of liability. 

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