A seven-year-old pedestrian died after being struck by a vehicle on a bridge designated as a scenic overlook. When the child's father sued, the Superior Court of Whatcom County granted Washington State's motion for summary judgment. The Court of Appeals of Washington, Division 1 confirmed that a recreational use immunity statute covered the bridge. The appellate court concluded the dangers of the bridge were obvious rather than latent conditions and did not qualify as exceptions to the statute.

THE INCIDENT

The Chamberlain family was sightseeing at the Deception Pass Bridge in the State of Washington (State) on February 18, 1991. They parked their car in a lot at the southwest end of the bridge. Signs at the end of the bridge designated it as a "Scenic Overlook and warned both of the presence of pedestrians on the bridge and the danger posed by passenger side mirrors on the passing vehicles to pedestrians on the walkways."

Seven-year-old Kekoa, his two sisters, and his father, William, walked up the west side walkway of the bridge to its center. Mr. Chamberlain and a daughter crossed the bridge to the opposite walkway and took pictures of Kekoa and his sister. They recrossed the bridge "a couple of times." When the Chamberlains had spent approximately 20 minutes on the bridge, Karl Sorenson (Driver) came onto the bridge in his 1971 Chevy Blazer at a speed of "approximately 20 miles per hour." Sorenson saw Kekoa standing near the edge of the walkway and heard a "thud" as he drove past him. Sorenson stopped when he got to the end of the bridge. Running back, he found Kekoa lying in the road. Kekoa died later that day.

TRIAL COURT DECISION

William Chamberlain, as personal representative of Kekoa Chamberlain's estate, sued both the State and the Driver to recover for Kekoa's death. The Driver settled separately with the estate. The State moved for summary judgment, citing its immunity under Washington's recreational use immunity statute, RCW 4.24.200-.210 (click here to read the Revised Code of Washington or to search it by keyword). The Superior Court of Whatcom County determined that the State was entitled to recreational use immunity under the statute and that the State had committed no act or omission that was a "legal proximate cause" of Kekoa's death. The trial court granted the summary judgment.

APPEALS COURT DECISION

Kekoa Chamberlain's estate appealed the summary judgment. The estate asserted that the recreational use immunity statute did not apply in this case. The statute (RCW 4.24.210), in part, provides:

RCW 4.24.200 deals with the purpose of the recreational use immunity statute. It provides that:

The Court of Appeals of Washington, Division One, concluded that the recreational use immunity statute applied to public and private landowners. There was no dispute regarding the fact that the Chamberlain family was visiting the bridge for recreation or that the State charged no fees for using the bridge for sightseeing. Chamberlain argued, however, that bridges are not land, but public highways; and that the Deception Pass Bridge fit the definitions both of highway and sidewalk.

The court asserted that the objective of a statute is to "ascertain and carry out the intent of the Legislature." When the wording is clear, the wording of the statute itself carries its meaning. The court contended that:

When determining the meaning of a word used in a statute, courts must look at both the subject matter and the context. The court explained:

The Court further stated that:

The court asserted, "The fact that 'highway' and 'sidewalk' are defined elsewhere does not require that they be excluded from the provisions of the recreational use immunity statute." The court found no question that the Legislature intended that bridges, such as Deception Pass Bridge, were to be covered by the definition of land and water use areas or channels as listed in the statute. This is true for all areas that are available specifically for recreational use--without charging a fee.

Chamberlain's estate further argued that even if the recreational use immunity statute applied in Kekoa's case, questions of "material fact" existed regarding the exception under the statute for "a known dangerous artificial latent condition for which warning signs have not been conspicuously posted." The plaintiff claimed such questions of fact would preclude summary judgment.

The court answered that, for the purposes of the statute, "latent" was defined as "not readily apparent to the recreational user." The court stated that the actual condition itself, and not simply the danger or the threat of danger, must be latent. The question was whether a condition would be "readily apparent" to the general class of recreational users of the area, not whether one person might fail to perceive it.

Photographs of the bridge and walkways showed that if people chose to cross the bridge at mid-span, the traffic to which they would be exposed "cannot be deemed other than open and apparent." Chamberlain admitted that he was aware of the danger from the traffic and had warned his children--at least twice. The appellate court agreed that the danger on the bridge was "readily apparent to the recreational user." Because this dangerous condition was readily apparent, it could not be latent. The court concluded that no exception here applied to the recreational use immunity statute.

The plaintiff further argued that it was unclear how the car hit Kekoa. It was not certain whether Kekoa walked into the path of the car or was hit while he was on the walkway. Both the Driver and Chamberlain testified that they saw Kekoa on the walkway before he was injured. The Driver stated that his vehicle did not have a sideboard, running board, or passenger-side mirror. The only damage to the Blazer was to the passenger-side headlight. If a mirror had been involved in the incident, however, the warning signs posted at the bridge would exclude the latent condition exception to the recreational use immunity act.

The court stated that even if a factual issue existed on explaining how the incident happened, such an issue would be immaterial. No evidence suggested that the injury was "other than unintentional. . . . More than mere speculation or possibility is required to defeat a summary judgment motion."

The appellate court also stated that it was offering "no opinion about the application of the statute to others who may pass over the bridge for purposes other than outdoor recreation."

The appellate court affirmed the trial court's decision that no latent defect existed on the Deception Pass Bridge; therefore, the provisions of the statute applied and the State's summary judgment motion survived.