Camicia v. Howard S. Wright Constr. Co.

179 Wash.2d 684

317 P.3d 987

Susan CAMICIA, Respondent,

v. HOWARD S. WRIGHT CONSTRUCTION CO., Defendant,andCity of Mercer Island, Petitioner.

No. 85583–8.

Supreme Court of Washington, En Banc.

Argued Nov. 15, 2011.

Decided Jan. 30, 2014.

Andrew George Cooley, Attorney at Law, Adam Rosenberg, Keating Bucklin & McCormack Inc PS, Seattle, WA, for Petitioner.

Roy Andrew Umlauf, Forsberg & Umlauf, Seattle, WA, for Defendant.

John Budlong, Law Offices of John Budlong, Edmonds, WA, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, Seattle, WA, for Respondent.

Peter Samuel Holmes, City of Seattle Law Department, Rebecca Boatright, Seattle City Attorneys Office, Seattle, WA, amicus counsel for City of Seattle.

Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, Daniel Brian Heid, City of Auburn, Auburn, WA, amicus counsel for Washington State Association of Municipal Attorneys.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, amicus counsel for Washington State Assoc. for Justice Foundation.

STEPHENS, J.

¶ 1 This case asks us to consider the scope of Washington's recreational use immunity statute, former RCW 4.24.210 (2003).¹ Susan Camicia sustained severe injuries when she was thrown from her bicycle after colliding with a wooden post on a portion of the Interstate I–90 (I–90) bicycle trail located in the city of Mercer Island (City). In response to Camicia's negligence action against it, the City moved for summary judgment under RCW 4.24.210, which provides immunity from liability for unintentional injuries to landowners who “allow members of the public to use [the land] for the purposes of outdoor recreation ... without charging a fee of any kind therefor[e].”

¶ 2 The Court of Appeals reversed the trial court's grant of summary judgment, holding recreational use immunity could not be determined as a matter of law because there were disputed issues of fact as to whether the trail served a recreational purpose as opposed to a transportation purpose. We agree and affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 3 On review of summary judgment, the facts are viewed in the light most favorable to Camicia, the nonmoving party. CR 56; Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002).

A. The I–90 Bicycle Trail's Origins

¶ 4 The I–90 bicycle trail was built by the Washington State Department of Transportation (WSDOT) in the mid-to-late 1980s and runs from Seattle to Mercer Island across Lake Washington and to other areas in the Puget Sound. To prevent motor vehicles from entering the asphalt trail, WSDOT installed wooden posts, also called bollards, at some locations where the trail intersects city streets.

¶ 5 In October 2002, WSDOT published an evaluation of whether the trail was a public park or recreation area for purposes of federal law. Under the provision of the Departmentof Transportation Act of 1966 known as “Section 4(f),” ² the Secretary of Transportation may approve a transportation project's use of a public park or recreation area only if no reasonable alternative exists and all measures to reduce harm are taken. 49 U.S.C. § 303(c). Consideration under Section 4(f) is not required, however, when the officials having jurisdiction over the site determine that recreation is not a major purpose of the land and is only a secondary or occasional purpose. See former 23 C.F.R. § 771.135 (2002); Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545, 556 (2d Cir.2003) (quoting Fed. Highway Admin., Section 4(f) Policy Paper (revised June 7, 1989) (Bikeways), available at http:// www. dot. ca. gov/ ser/ voll/ secl/ chlfedlaw/ 4 policy. txt). In a policy paper, the Federal Highway Administration (FHA) advised local officials that when a bikeway “is primarily for transportation and is an integral part of the local transportation system,” Section 4(f) does not apply. Bikeways, supra, § 13.

¶ 6 Applying this standard, WSDOT determined that the I–90 trail was primarily for transportation. In its discussion of the trail's history, the evaluation underscores that the trail was built “as part of a multi-modal transportation facility, using federal and state highway funds. No funds designated for recreational facilities were used in constructing the path and separate accounts were used to ensure the separation of recreational and transportation funds.” Clerk's Papers (CP) at 749. Although the trail is also used by pedestrians and others, it “[wa]s designed and built primarily for use by bicycles.” Id. While the WSDOT recognized “the path can be used for recreational purposes,” it perceived these uses to be minimal and fairly insignificant in comparison to its transportation function. See id. Indeed, WSDOT noted the trail serves as “the only means for non-motorized access to Mercer Island and across Lake Washington” and thus “is an important link in the regional transportation system.” Id.

¶ 7 In accordance with these considerations, WSDOT concluded that because the trail was neither a public park nor recreation land for purposes of federal law, it was not a Section 4(f) resource. Id. The Federal Highway Administration found this determination reasonable, and concurred that—at least with respect to the portion over the Homer Hadley floating bridge—the primary use is transportation.

B. Transfer of the I–90 Bicycle Trail to Mercer Island

¶ 8 Shortly after construction, WSDOT arranged to cede ownership in the portion of the trail running over Mercer Island. In 1987, the City and WSDOT entered into the “I–90 Turnback and Landscape Maintenance Agreement.” CP at 508. This agreement refers to the first phase in a process whereby certain roadways and rights-of-way would be transferred from WSDOT to the City. Id. During this first phase WSDOT agreed to pay the City to maintain and landscape these transit facilities. Id.

¶ 9 In 1991, the City created a document entitled “City of Mercer Island Comprehensive Park, Recreation, Open Space, Arts and Trails Plan.” CP at 175. Within this document the “I–90 Trail and Linear Park” are described as follows:

Primarily located along the north side of I–90, a multi-purpose pedestrian/bicycle regional trail will connect the East Channel and Floating bridges in 1992.... In total, there will be 8 miles of trails in the corridor. Both sides of I–90 and portions of the lids and overpasses will be heavily landscaped, and used as park lands. The linear park includes 90.5 acres along the freeway. The major portion of this park will buffer the Central Business District from the freeway.

CP at 178 (emphasis added).

¶ 10 On April 1, 2000, WSDOT conveyed to the City a portion of the trail, including the spot where Camicia was injured. The quitclaim deed provided:

It is understood and agreed that the ... property is transferred for road/street purposes only, and no other use shall be made of said property without obtaining prior written approval of the grantor. It is also understood and agreed that the grantee, its successors or assigns, shall not revise either the right of way lines or the access control without prior written approval from the grantor, its successors or assigns.

CP at 624 (emphasis added).

¶ 11 Despite this language, the City contends it understood the trail to be primarily recreational in nature. It points to a local ordinance prohibiting adult entertainment facilities near the trail while allowing such facilities near other public streets. Additionally, the city parks department maintains the I–90 Trail and Linear Park, while city streets are maintained by a separate department.

C. Camicia's Injury and Subsequent Proceedings

¶ 12 At the time of Camicia's accident, Sound Transit had retained Howard S. Wright Construction Company as the general contractor for a construction project at the South Transit Mercer Island Park & Ride facility. To prevent public access during construction, the contractor installed a chain link fence around the perimeter of the site. Some of the fence footing at this site protruded onto the I–90 bicycle trail where North Mercer Way intersects 81st Avenue Southeast.

¶ 13 The day of her accident, Camicia was bicycling along the I–90 trail as she approached this intersection. She veered left to avoid the fence footing to her right. She looked up just in time to see the wooden post, immediately hit it, and was thrown from her bike. As a result of her fall, Camicia suffered serious injuries that rendered her paralyzed.

¶ 14 Camicia brought suit against the City and the construction company in King County Superior Court.³ CP at 1–8. The City moved for summary judgment, asserting immunity under Washington's recreational use immunity statute, RCW 4.24.210. Under this statute, “public or private landowners or others in lawful possession and control of any lands” who allow the public “to use them for the purposes of outdoor recreation,” without charging a fee, are immune from liability for unintentional injuries to such users. RCW 4.24.210(1).

¶ 15 Camicia argued immunity does not apply because the City failed to show that (1) it owned the trail; (2) it had the legal authority to open or close its portion of the trail; and (3) immunity otherwise applied to the trail, which Camicia characterized as a “regional public transportation route.” CP at 303.

¶ 16 A hearing on the motion was held before Judge Douglas McBroom. The hearing transcript reflects that the court was troubled by the City's position that any recreational use on the trail, no matter how insignificant, would immunize the City. Following the hearing on the motion, the court denied the City's motion without prejudice. The court held that issues of fact remained as to the ownership and control of the trail and whether the trail was sufficiently recreational in nature for immunity to attach.

¶ 17 Meanwhile, the City surveyed the accident site to determine ownership. The case was transferred to Judge ...