NORMA L. MCCARVER, as Administratrix, ET AL., Appellants, v. MANSON PARK AND RECREATION DISTRICT, ET AL., Respondents.
No. 45967
Supreme Court of Washington
July 26, 1979
92 Wn.2d 370
UTTER, C.J., and STAFFORD, WRIGHT, BRACHTENBACH, HOROWITZ, DOLLIVER, HICKS, and WILLIAMS, JJ., concur.
[No. 45967. En Banc. July 26, 1979.]
NORMA L. MCCARVER, as Administratrix, ET AL, Appellants, v. MANSON PARK AND RECREATION DISTRICT, ET AL, Respondents.
Gary N. Jardine, for respondents.
HICKS, J.-Plaintiffs McCarver and Peterson appeal the dismissal with prejudice in the Chelan County Superior Court of their action for the wrongful death of their daughter, Roberta Ann Peterson. The Court of Appeals, Division Three, certified the matter to this court for determination of the applicability of
Manson Park and Recreation District was organized in 1971. The parties stipulated it to be an unincorporated entity, although it is also referred to in the briefs as a municipal corporation. Manson Park operates a public swimming area, extending into Lake Chelan, which has a U-shaped dock and diving platform 10 to 12 feet in height. In addition to the swimming area, the park provides baseball diamonds and playfields. Although the record fails to clearly identify the owner of the parkland and water areas (there is some indication that ownership is in the United States Government), it is clear that Manson Park has the exclusive right of possession and control. In 1973, Manson Park initiated lifeguard services for the period of June through the Labor Day weekend. Apparently, the lifeguard was on duty 6 days a week.
July 16, 1973, the area was open to the public for swimming, although it was the lifeguard‘s day off. An unspecified number of teenagers in the swimming area of the park were engaged in a game of “rag tag“. Roberta Ann Peterson, age 14, fell or was pushed from the diving tower during the activity. She struck her head on the dock sustaining injuries from which death resulted the same day.
July 15, 1976, Norma McCarver and Floyd Peterson, the deceased‘s mother and father, initiated this action against Manson Park and Recreation District for the wrongful
The matter was scheduled for trial in Chelan County Superior Court in January 1978. Manson Park moved for summary judgment based upon the statutory bar of
The trial court conducted a telephone conference hearing among the attorneys for the parties on January 5, 1978. The plaintiffs stipulated that: (1) Manson Park allows the public to use the area for outdoor recreation without charging a direct fee; (2) the cause of the injury to the deceased was unintentional. The trial court granted partial summary judgment (ruling the statute to be applicable), but it determined that a question of material fact remained as to whether Manson Park maintained “a known dangerous artificial latent condition for which warning signs have not been conspicuously posted“. See
Trial was set for January 9, 1978. On that date, a second telephone conference hearing was held. Plaintiffs stipulated that if
The sole issue before us is the applicability of
Any public or private landowners or others in lawful possession and control of agricultural or forest lands or water areas or channels and rural 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 hunting, fishing, camping, picnicking, swimming, hiking, pleasure driving, the pleasure driving of all-terrain 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: Provided, That 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: Provided further, That nothing in
RCW 4.24.200 and 4.24.210 limits or expands in any way the doctrine of attractive nuisance.
(First italics ours.)
The parties have stipulated that: (1) the situs of the accident is a “water area” and rural land adjacent thereto (as encompassed by
Based upon the stipulations entered, the first proviso of
The language of the statute expressly includes “public or private landowners or others in lawful possession and control“. Appellants contend that Manson Park is not within the purview of the statute on three grounds: (1) statutory history; (2) statutory purpose; and (3) public policy.
STATUTORY HISTORY
The statutes were first enacted in 1967. Laws of 1967, ch. 216. The act is said to be patterned after a model act proposed in 1965 by the Council of State Governments. See 24 Suggested State Legislation, Public Recreation On Private Lands: Limitation On Liability, 150-52 (1965). See also J. Barrett, Good Sports And Bad Lands: The Application Of Washington‘s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1 (1977). The impetus behind the model legislation was “to encourage availability of private lands by limiting the liability of owners.” The council asserted that “in those instances where private owners are willing to make their land available to members of the general public without charge . . . every reasonable encouragement should be given“. 24 Suggested State Legislation, supra at 150.
As originally enacted in 1967, the Washington act covered only “landowner[s]” of “agricultural or forest lands“. The act listed certain activities as included within the term “outdoor recreation“.
The purpose of this 1972 amendatory act is to increase the availability of trails and areas for all-terrain vehicles by granting authority to state and local governments to maintain a system of ATV trails and areas, and to fund the program to provide for such development. State lands should be used as fully as possible for all public recreation which is compatible with the income-producing requirements of the various trusts.
Laws of 1972, 1st Ex. Sess., ch. 153, § 1, p. 473;
The limited legislative history available concerning the addition of the words “public or private” does not greatly assist us in the present inquiry. As originally introduced,
There can be no dispute that Manson Park is a public landowner or one in possession and control of land and water areas. Appellants contend that limitations on the liability of public landowners under
STATUTORY PURPOSE
The purpose of
RCW 4.24.200 and 4.24.210 is to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.
(Italics ours.)
In 1972, when the legislature expressly included public landowners within the provisions of
Finally, appellants assert that the statute was not intended to apply to land or water areas available exclusively for recreational purposes. They argue that in light of the statutory purpose, the scope of the act should be limited to land primarily used for other purposes, but with incidental recreational uses. Thus, they reason when Manson Park affirmatively invites the public to use the park exclusively for recreational purposes, it falls outside the scope of the liability limiting statute.
In the instant case, the parties stipulated that the accident occurred in a “water area.” We decline to impose a limiting construction upon the statute differentiating land classifications based upon primary and secondary uses where the legislature did not. Arguments to achieve such a result should appropriately be addressed to the legislature.
Finally, appellants assert that although public policy considerations may be persuasive to limit the liability of private landowners, the application of the statute to public parks defeats public policy. They assert that because public funds are expended, the public has a right to safe facilities, which application of the statute would deny. Such arguments are more appropriately directed to the legislature. Where, as here, the language of the statute is plain and not ambiguous, a departure from its clear meaning is not warranted. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972).
Affirmed.
ROSELLINI, STAFFORD, WRIGHT, and WILLIAMS, JJ., concur.
DOLLIVER, J. (dissenting)-The question is whether
It is not beyond the ambit of judicial notice to observe that, beginning in the early part of the 1960‘s, the United States and the state of Washington experienced a rapid explosion of all aspects of outdoor recreation. While there was a significant governmental response to the need for more recreational land (see, e.g., Referendum Bill No. 11, approved November 3, 1964 (Laws of 1963, 1st Ex. Sess., ch. 12, p. 1352)), it was apparent that large acreages of private land could also add to the available outdoor recreational resources. To help meet this need, a model act, “Public Recreation on Private Lands: Limitations on Liability“, was promulgated by the Council of State Governments in 1965. 24 Suggested State Legislation, Council of State Governments 150-52 (1965). The introductory paragraphs to the act stated:
Where the owners of private land suitable for recreational use make it available on a business basis, there
may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises. However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.
The suggested act which follows is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner. In the case of lands leased to states or their political subdivisions for recreational purposes, the legislation expressly provides that the owner will have no remaining liability to recreationists, except as such liability may be incorporated in an agreement, or unless the owner is compensated for the use of the land in addition to consideration for the lease.
24 Suggested State Legislation, supra at 150. See also J. Barrett, Good Sports And Bad Lands: The Application Of Washington‘s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1 (1977).
In the original act, Laws of 1967, ch. 216, p. 1055, it is a clear inference from both section 1 (now
Here the Manson Park and Recreation District was not simply “mak[ing] available land and water areas to the public for recreational purposes” or passively “allow[ing] members of the public to use” the area. It was actively and purposefully operating for the use of its citizens a recreational area which included a public swimming area with a public dock and a diving platform. It provided lifeguard services 6 days a week and had attempted to hire a lifeguard for the seventh day. Defendant is a taxing district and three-fourths of the moneys raised, by taxes, the year of the accident in this case, were allocated to provide a lifeguard for the swimming facility. The recreational use was primary and exclusive.
The majority invites the plaintiff to carry the primary/secondary use distinction to the legislature. There is no need for that. The legislative language and purpose is plain. The defendant should not be allowed to hide behind a statute which in neither intent nor content was meant to provide it immunity.
I dissent and would reverse the trial court and remand for trial.
UTTER, C.J., and BRACHTENBACH and HOROWITZ, JJ., concur with DOLLIVER, J.