§4.6 - Washington Statutes Varying the Common-Law Premises Liability Rules

• Jurisdiction: Washington

§4.6WASHINGTON STATUTES VARYING THE COMMON-LAW PREMISES LIABILITY RULES

The legislature has passed a number of statutes that restrict the liability of owners or possessors of real property in circumstances in which liability would be found under common-law rules. These statutes are discussed in this section.

(1) Recreational use statute: RCW 4.24.200-.210

The adoption of the recreational use statute resulted from an earlier expansion of the category of invitees. Formerly, invitee status was restricted to only those persons whose presence was of "potential economic benefit" to the possessor. The harsh results and inevitable hairsplitting this limitation often produced were dispatched with an expanded definition of invitee, which increased the potential liability of possessors. See McKinnon v. Wash. Fed. Sav. & Loan Ass'n, 68 Wn.2d 644, 414 P.2d 773 (1966). In turn, this increased potential liability threatened to cause possessors to limit access by the general public to recreational property.

In response, in 1976 Washington's legislature enacted recreational use laws, RCW 4.24.200-.210, "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 towards persons entering thereon...." RCW 4.24.200. Thus, a possessor making land available for recreational uses free of charge cannot be held liable for unintentional injuries to users unless the possessor has failed to warn of a (1) known, (2) dangerous, (3) artificial, and (4) latent condition. RCW 4.24.210; Tabak v. State, 73 Wn.App. 691, 870 P.2d 1014 (1994). See generally John C. Barrett, Good Sports and Bad Lands: The Application of Washington's Recreational Use Statute Limiting Landowner Liability, 53 WASH. L. REV. 1 (1977). A property may be open to the public for recreational uses only part of the time and therefore governed by the statute only at those times. See Home v. N. Kitsap Sch. Dist., 92 Wn.App. 709, 965 P.2d 1112 (1998) (high school athletic field).

The scope and operation of the recreational use statute was tested in Camicia v. Howard S. Wright Construction Co., 179 Wn.2d 684, 317 P.3d 987 (2014). A cyclist was injured on the I-90 bicycle trail located on Mercer Island. The court held that a landowner asserting recreational use immunity must have the authority to close the land where the injury occurred to the recreating public. Otherwise, the recreational use statute's immunity would not have the intended effect of encouraging owners to open land that would not otherwise be open to the recreating public. The public must be allowed to use the land for the purposes of outdoor recreation...