DNR Immunity Rule Letter

[Grumpy]

SUBJECT: Recreational Immunity Law (RCW 4.24.210)

MESSAGE: Hello (your Reps)

My name is ______________ and I live in your represented area. My ___________ and I live in _________ County and travel all over Washington to enjoy the outdoors, whether that involves our Jeep, motorcycles, mountain bikes, or on atv's with our friends. I am writing to you in an effort to bring up an issue with the Recreational Immunity Law. There is a very small phrase with a very large negative impact on our recreational lands that is included in this statute that should be removed. The phrase that needs to be removed is "known dangerous, artificial, latent condition"

In context with the rest of the law, it essentially means if a landowner knowingly leaves something that matches that phrase on their land without warning signs they are potentially responsible for an injury. This also brings up other liability issues. As other states have recognized, those who recreate on public or private lands should be responsible for their own actions. The "gray area" caused by this phrase should be removed so agencies like DNR can continue to provide recreational opportunities for all to enjoy. All states have these types of laws, but Washington state includes that phrase and it intimidates landowners both public and private to the point where they are closing these recreational areas or refuse to improve them so they don't intentionally create a liability.

Not only does this greatly affect lands where we currently recreate, but also access to future areas (both private and public). Please be sure to bring this issue up in the next legislative session. It is time for our society to start taking responsibility for their own actions in all areas of their lives whether it is financial, recreational,or otherwise.

Best regards,

[YOUR NAME]
[CITY]

[Grumpy]

Get on it, people!! No details, but I'm working pretty hard on a hat trick on this...

[iaccocca]

Hey Dave, what prompted the concern? Is DNR concerned that this will be an issue for them?

If anyone gets a chance, read the law. It basically says a landowner can let outdoor enthusiasts use their land without concern of liability, but then a line is thrown in that says unless there is a man made hazard on the property that is not marked, then they'd be lible. I think it was originally written so that timber companies could open their lands to the public.

[Grumpy]

Not sure yet where this started, but I think the second paragraph of the letter explains it. A fear of litigious types turning that phrase to their own purposes would be my guess...

[iaccocca]

I think it is the litigious types are who got "known dangerous, artificial, latent condition" added to the law.

[Grumpy]

What did you say? "Lawyer's law"...

[iaccocca]

What did you say? "Lawyer's law"...

I think I said 'bad lawyer law.' I have too many lawyer friends to lump all lawyers together.

[Grumpy]

Well, get one of 'em in the club

[Grumpy]

Landowner Liability: Opening land to recreation users

RCW 4.24.210, “Liability of owners or others in possession of land and water areas for injuries to recreation users – Limitations.â€

[Grumpy]

Here is the response I received concerning the immunity law.

Thanks for letting us know your concern with recreational land use.
While some kind of change in the law may be appropriate, in the 2008 session we passed Substitute House Bill 2472. The bill created the Sustainable Recreation Work Group, and the final report from the group is due this December. Part of the charge of the work group is to identify barriers to increased recreation on DNR lands. I believe this report will probably drive what happens next, legislatively, with recreational land use issues, and you may want to check it out, if you aren't already aware of it, on how you may impact the results, at this point, although a number of deadlines have supposedly passed. We will also send on your remarks to Mark Mauren, Asst. Division Manager, Public Recreations Access via a cc of this e mail.

The reports of the Sustainable Recreation Work Group can be followed at this website:
http://www.dnr.wa.gov/RecreationEduc...nPlanning/Page
s/amp_rec_sustainable_recreation.aspx



I have asked House staff to look at the law, and so far what can be said around the issue is the following from one of those staff:" I have to infer a bit as to the intent of the law; however, it is pretty clear that the law today sets out to provide immunity to those who open their land for others only to have their visitors injure themselves through no fault of the owners. This is akin to providing immunity from negligence. The current law does not provide immunity to landowners who know there is something dangerous on their property and does nothing to warn their visitors. Or in other words, the statue protects against negligence but not gross negligence."

I will be looking to the DNR reports to see where this goes, and what kind of impacts they will be recommending. In the meantime, I'd be happy to meet with you to discuss this further.

One addendum to this information that I just received: This topic will be one of the recommendations of the sustainable Outdoor Recreation Work Group before the legislature this coming session.

Sincerely,

Mike Sells
State Representative

*"Borrowed" from NWW*

[Grumpy]

Another response:

Thank you for drawing your concern to my attention.

The state has had a long history of encouraging access to land for recreational purposes - in 1967 we instituted the limited recreational liability statute that you reference. The core of that statute is: "any public or private landowners... who allow members of the public to use them for the purposes of outdoor recreation... without charging a fee... shall not be liable for unintentional injuries to such users." This statute flipped common law on its head and created very strong protections for landowners when they allowed the public to use their land, free of charge, for recreational purposes.

There are three limited conditions to which liability will attach to the landowner in the case of such a recreational injury.

1) A fee is attached to the usage of the land (although there are certain usage charges in statute that do not incur liability)
2) The injuries are intentionally inflicted
3) The injuries are caused by a known, dangerous artificial AND latent condition

In your email you bring up question about the third instance in which liability can fall to the landowner. It is important to understand that all three of those conditions must be met, the absence of any one element means that there is no liability. Just as background, latent conditions are those that represent dangerous conditions that are "not readily apparent to the recreational user" (see Chamberlain v. Department. of Transportation (Wash.App.Div. 1 1995)) and artificial conditions are those that are created by humans as opposed to natural conditions (see Davis v. State of Washington in 2001). Obviously the meanings of all of these provisions have been litigated.

It is highly unlikely that the Legislature would completely remove these provisions; but with that being said, if you have a particular type of condition that you would like to see exempted - the state has done that in the past. Like in 2003 when the Legislature, including myself, unanimously passed HB 1195 which expanded recreational immunity to landowners who provided rock climbing opportunities. This was a bi-partisan bill expanding recreational liability immunity and working to expand recreational access. It is now current law: http://wsldocs/2003-04/Pdf/Bills/Ses.../1195-S.SL.pdf.

My door is always open so if you would like to bring a specific condition to me regarding recreational immunity I would be happy to consider it. The feedback I get from the folks at home help guide my decisions when I am in Olympia.

Sincerely,

John McCoy
Stat Representative, 38th LD

[Grumpy]

Hi Dave, omitted constituent information – but just a little history Senator thought you might be interested in.



From: May, Jeri On Behalf Of Delvin, Sen. Jerome
Sent: Tuesday, November 03, 2009 10:47 AM


To: Subject: Recreational Immunity Law (RCW 4.24.210)



Good Morning

Senator asked that I speak to our legal staff regarding the history of the proposed idea for legislation. Apparently, constituents have been bringing this issue up to Senators all over the state recently. Senator was pleased to speak with you last week.



As suspected, you wrote as a response to an email you might have received off the web, http://www.pnw4wda.org/forums/showthread.php?p=8195



This issue has been discussed quite a bit in the Natural Resources Committee the past few years, although nothing substantial has passed. Below is some background information on the statute. Senator Delvin does not sit on the Natural Resources Committee where this bill originates.



Thank you for keeping the Senator informed of your concerns.



Respectfully,



Senator Delvin and staff



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Historically, Washington courts ruled that landowners generally owe persons invited to enter their land a duty to take reasonable steps to keep that land in a reasonably safe condition. This includes an affirmative duty to inspect the premises and discover dangerous conditions.



The Legislature modified this general rule through what is known as the Recreation Use Immunity Statute (statute). The stated purpose of the statute is to encourage landowners, or others in possession and control of land (collectively landowners), to make their land accessible to the public for recreational purposes by limiting their tort liability. Towards this end, the generally provides protection from tort liability for landowners who allow free public use of their lands.



The liability protection offered under the statute is not absolute. The statute does not protect landowners from certain known and dangerous conditions for which warning signs have not been conspicuously posted. Additionally, landowners who intentionally injure recreational users receive no protection.



The constituent suggests removing language from the statute that currently makes it possible for landowners to be held liable for injuries caused by a "known dangerous artificial latent condition." The main argument in favor of enhancing protection under the statute, as the constituent suggests, is that reduced tort liability may prompt more public and private landowners to open or keep their land open for recreation. The main argument against enhancing protection under the statute is that it could extend legal protection to landowners who are aware of dangerous conditions, but make no effort to prevent potential injuries.

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[Grumpy]

From: Kilmer.Derek@leg.wa.gov
To: *******@hotmail.com
Date: Fri, 30 Oct 2009 16:37:50 -0700
Subject: RE: Constituent: Recreational Immunity Law RCW 4.24.210

*****,

Thank you for your message. I appreciate you taking the time to share your comments with me. As I understand it, this issue has a long history. Several folks around the region have been raising concerns about it lately, and I have been having discussions about this with other legislators and our policy staff to think about potential options.

As you know, the statute provides an immunity from damages lawsuits by injured recreational users when the access is provided free of charge. But then there is an exception to the immunity, as noted by you, which derives from various lines of tort cases that have set up the common law on this subject. One of the court decisions construing this statutory standard went against Tacoma Power at one of their projects involving a boating collision with a submerged stump.

Forest landowners, other landowners providing recreational access, and some utilities would like to modify this exception to the immunity, if only slightly to address their particular circumstances. But the trial lawyers vigorously oppose it, arguing that it is actually a very narrow, common sense exception. I'm not aware of the structure in other states but suspect that there are similar exceptions to the recreational use immunity. Our policy staff continues to look into this.

I see both sides of this issue and am looking forward to learning more about it. The "plus" would be some (hard to quantify) marginally greater tendency for landowners to grant access to the public for recreational uses, if this exception to the immunity was not in the statute. The "minus" might be that an injured recreational user is barred for compensation from the landowner due to an injury that under the current law is considered a "known, dangerous, latent, artificial" condition.

Thank you again for your message. This discussion is ongoing. I’d appreciate hearing any further comments or ideas you may have.

Best,
Derek Kilmer

Olympia Office:
Derek Kilmer
State Senator - 26th District
P.O. Box 40426
Olympia, WA 98504
(360) 786 - 7650

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