Previous Page
Bonfires, Boatersand Bicyclists:
Washington’s Recreational Immunity Law Dainen Penta
Living in the Pacific Northwest means easy access to outdoor recreation. Many community associations are located in areas where—in only minutes—we can be hiking, biking, running, hunting, or any number of outdoorsy “-ing” words, communing with nature in peace and quiet. Many associations have their own trails or waterways, and may have dedicated public access to these features. Homebuyers often buy in a community association precisely because of
these amenities, and non-owners often use amenities
within an association. Of course, questions come up about responsibility for injuries. What if the injured person isn’t an owner? Can an association exclude the public from enjoying common recreational amenities? The answer, if you ask your friendly community-association attorney, will probably be “it depends.” Fortunately, Washington law provides some guidelines and assurance for community associations (and their attorneys).
Washington law encourages the public use of land and waterways, whether the land is public or private. To encourage public use, landowners enjoy protection from liability for “unintentional” injuries suffered by members of the public who are there for “outdoor recreation.”1
protected by the recreational immunity law, where a court disagreed that the Burke-Gilman Trail had been designed to “willfully or wantonly” injure a bicyclist who tried to pass another cyclist on the right and ran over a jogger in the process. The court found that the presence of joggers and other trail users was not a “latent condition” necessitating posting warning signs.3
Another court found that the City of
Kennewick was protected by the recreational immunity law when a park user injured his eye on a playground “caterpillar” structure during a water fight. The court found that the caterpillar and its proximity to the grassy area immediately next to it was obvious, and the possibility of injury was not a “latent” condition.4
Washington’s
recreational immunity law broadly defines outdoor recreation to include a broad spectrum of activities, such as gathering firewood, hunting, bicycling, skateboarding, clam digging, and even hang gliding and parachuting. To qualify for immunity, a landowner generally cannot charge a user fee; Washington Department of Fish & Wildlife and parks and recreation pass and permit fees are not considered “fees” under this law.
What might an association have to do to qualify for recreational immunity? Generally speaking, the law boils down to two things an association should do: First, to not intentionally inflict injury on recreational users and members of the public (or anyone, really). Second, it must provide notice of any “known dangerous artificial latent condition.” A latent condition means something that isn’t blatantly obvious to most people. For example, underwater tree stumps submerged in Long Lake were determined to be a “latent” condition that the public should have been warned about.2
The statute has shielded several entities against liability in various cases in our state. For instance, the City of Seattle was
The application of the recreational immunity law gets more complicated when there are public-private interests at play, such as at a commercial marina. What about trespassers? The recreational immunity law protects landowners who “allow” members of the public to use the property. Therefore, once a recreational user ventures off a marked trail or path, or if there is fencing or “do not enter” signs have been posted to warn users to stay off a trail or out of a particular area, a public recreational user is more likely to be nothing more than a trespasser, and the chances an association will escape liability for a user’s injury are much better.
Since there are just as many variations on recreational amenities as there are community associations, communities and their professionals dealing with these issues will benefit from reviewing maps, declarations, and from walking the land—and consulting with your friendly community association attorney to get solid advice, since reading the immunity law might not be your idea of a rousing good time. (You may also consider discussing the law with your insurance provider, since the existence of the law may affect the coverage you should obtain.) However, your association attorney will probably have plenty of caselaw printouts to use as kindling if your association would like to invite him or her to a bonfire. We would be happy to bring the marshmallows.
References
1 RCW 4.24.210(1). 2 Ravenscroft v. Washington Water Power, 136 Wn.2d 911 (1998). 3 Riksem v. City of Seattle, 47 Wn.App. 506 (1987). 4 Van Dinter v. City of Kennewick, 846 Wn.2d 522 (1993).
19