IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ELIZABETH OLSON, an individual, Appellant,

v. TUKWILASCHOOL DISTRICT, Respondent. No. 72865-2- DIVISION ONE

UNPUBLISHED OPINION FILED: October 12, 2015 Becker, J. — Elizabeth Olson appeals the ordergranting summary 

### judgmentinfavor ofthe Tukwila School District and dismissing her premises liabilityaction. Because the District has immunity underthe recreational use immunity statute, we affirm. This case arises from an injurythat Olson incurred while atthe athletic 

### facility at Foster HighSchool, a public high school inthe TukwilaSchool District. Foster High School's athletic facility includes a running track. One day in April 2012, Olson visited Foster High School to use the running track as she had done
on many occasions inthe past. To getto the track, she took a different route than on prior occasions, one that required herto step down from the bleachers onto the track. Olson did not accurately perceive the rise that separated the CO <J'i CD CJ"\ CD •HI", PI . —1 CZ">• r"

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### bleachers from the track surface. As shetookthe step, she fell and injured her ankle. Olson sued the District. The District moved for summaryjudgment. The trial court granted the motion based on RCW4.24.200-.210, the recreational use immunity statute. This appeal followed. We review a grant of summaryjudgmentde novo, performing the same inquiry as the trial court. Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 

### 787, 108 P3d 1220 (2005). Summaryjudgment is appropriate only when there
are no genuine issues ofmaterial fact and the moving party is entitled to judgment as a matter of law. CR 56(c). When the facts are undisputed, immunity is a question of law for the court. Camicia v. Howard S. Wright Const. Co.. 179 Wn.2d 684, 693, 317 P.3d 987 (2014). Washington's recreational use immunity statute, RCW4.24.210, defines circumstances under which a landowner is immune from suit for unintentional injuries to users: Except as otherwise provided in subsection (3) or (4) ofthis section, any public or private landowners
... in lawful possession and control ofany lands
. . . who allow members ofthe public to use them for the purposes ofoutdoor recreation
. . . without charging a fee ofany kind therefor, shall not be liable for unintentional injuries to such users. RCW4.24.210(1). To be immune, the landowner must establish that the use (1) was open to members ofthe public (2) for recreational purposes and that (3) no fee ofany 

### kindwas charged. Because recreational use immunity is an affirmative defense,No. 72865-2-1/3 the landowner has the burden ofproving itapplies. Cregan v. Fourth Mem'l Church, 175 Wn.2d 279, 283-84, 285 P.3d 860 (2012). USE BY "MEMBERS OF THE PUBLIC" Olson does notdispute that use ofthe track is a recreational activity. She does dispute whetherthe use was open to members ofthe public. On that issue, Cregan is instructive. There, the Supreme Courtdefined "public" as "'[ojpen or available for all to use, share, or enjoy.'" Cregan, 175 Wn.2d at 285 (alteration in original), quoting Black's Law Dictionary 1348 (9th ed. 2009). The court also explained that depending on the specificfacts at hand, landowners may restrict
some access and stillqualify for recreational use immunity. Forexample, a landownerthat permits the public to hike or picnic may prohibitthe publicfrom hunting on its land. Alandowner may allow public access only during nonbusiness times. Arestriction that allows minor children on the land only if 

### accompanied by an adult may also be appropriate. Insuch cases, the land is still held open to the public. Cregan, 175 Wn.2d at 285-86. But the land is no longeropen to the public ifthe landowner restricts


### access by discriminating againstthe userbased on personal traits. In Cregan. the landownerdid not qualify for recreational immunity because the invitation to enterthe land depended on the user's religious affiliation. "When an owner 

### excludes people in this way—that is, has a selective invitation to enterthe land— 

### the land is no longer open to the public, that is, for all to use or enjoy." Cregan, 175Wn.2dat286.No. 72865-2-1/4

The Tukwila School District limits the invitation to use the track in a numberofways that clearly pass muster under Cregan. Forexample, the track 

### is open to the public only before and after school hours. One posted sign excludes weapons, drugs, alcohol, tobacco, motorized and wheeled vehicles, skateboarding, loitering, and criminal trespass. Another sign, while stating that wheelchairs are allowed, disallows pets (otherthan service animals), cleated shoes, and food and drink otherthan water. These restrictions do not, under Cregan, transform the facility into one that is not open to the public. The closerquestion is a restriction limiting public use ofthe trackto "Tukwila citizens" who have obtained an access card at the school district office. The facility's main entrance gate has an access card reader. One posted sign limits access to "Authorized Card Holders Only," and another sign states 

### that "Tukwilacitizens" may obtain an access card. Olson contends that by reserving the right to deny access to Tukwila citizens, the District has issued a selective invitation. There is no evidence inthe record thatthe policy restricting use ofthe track to cardholders is based on a personal trait. Everyone in the Tukwila community had the same opportunity to obtain an access card. A District employee testified in a deposition thatto obtain an access card, Tukwila citizens have to provide identification and complete a two-page application. Access cards
are issued the same day. The employee testified that in her 12 years working for the District, she has never denied an application.No. 72865-2-1/5 

### While it ispossibleto imagine circumstances underwhich it might be considered discriminatory to restrict use on the basis ofwhere the user lives, 

### based on the specific facts of this case, a reasonable trier of fact could only conclude thatthe facilitywas open to members ofthe public. A FEE OF ANY KIND 

### The otherdisputed element ofrecreational use immunity is whetherthe Districtallowed public use without charging "afee ofany kind therefor." The District did not charge Olson a fee to use the running track. Access cards were free ofcharge. The District did, however, occasionally chargefees for organizations and groups to use allaspects ofthe athleticfacilities, including the track, artificial turf, announcer, control booth, custodian, field supervisor, police 

### security, and scoreboard. For use ofthe track only,the Districthas charged fees
on seven occasions inthe pastfive years. Olson contends thatthe charging offees inthese instances precludes 

### immunity. She argues thatthe District is not immune ifany fee was ever charged for use ofthe athletic facility. She relies on a case from the Oregon State Supreme Court, Coleman v. Oregon Parks &Recreation Department. 347 Or. 94, 217 P3d 651 (2009). Inthat case, the plaintiffpaid a fee for a campsite in a park. While in the park, he was injured on a bike trail where the public was free to ride. Oregon's immunity statute applied only ifthe landowner "makes no charge for permission to use the land." Former ORS 105.688(2)(a) (2001). The Supreme Court ofOregon denied immunity to the parks department because ofthe charge to use a campsite. Under Coleman, the landowner is entitled to immunity only ifNo. 72865-2-1/6 

### there is no charge for using any partofthe land. Itmakes no difference ifthe 

### injuredperson was engaged at the time of the injury in a use for which no fee
was charged. Coleman, 347 Or. at 102-03. 

### InWashington, onthe otherhand, a landownercan charge a fee for public
use of a portion of its recreational land withoutnecessarily losing immunityfor public use of the remainder. Piano v. City of Renton. 103 Wn. App. 910,914-15, 14 P.3d 871 (2000). The inquiry under our statute is whether landowners allow members ofthe public to use their lands for recreational purposes "without charging a fee ofany kind therefor." RCW 4.24.210(1). 

### InPiano, the plaintiffwas injured when she slipped and fell on a ramp leading to a moorage dock in a city park. Renton did not charge users a fee to enterthe park or to use most ofthe park's facilities, but it did charge a fee for 

### overnight moorage. We identified the issue as whether Renton charged a "fee of any kind" for use ofthe land where the injuryoccurred. The moorage was available for members ofthe public to use for purposes ofoutdoor recreation. "Underthe statute, immunity is available only ifRenton does not charge a fee of any kind for such use." Piano, 103 Wn. App. at 914 (emphasis added). Because Renton did charge a fee for overnight moorage and the plaintiffwas injured while using the moorage, the city was not entitled to recreational use immunity. Inthis case, the use inquestion is an individual's use ofthe running track, not an eventthat commandeered the entire stadium. Occasionally, fees were charged for the use ofthe track alone by organized groups on scheduled dates, a
use that might involve the District in planning, supervision, and cleanup. TheseNo. 72865-2-1/7 

### fees included rental fees, securityfees, custodial fees, utilityfees, and administrative fees as would be appropriate. No fee was evercharged to 

### individual members of the public who made unscheduled use of the running track. On the specificfacts ofthis case, the Districtwas not liable for 

### unintentional injuries to "such users" because such use by individual members of the public was always free. LATENCY 

### Landowners who are immune are generally not liable for unintentional 

### injuries. But an injured party may overcome immunity by showing thatthe injuries were sustained "by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted." RCW 4.24.210(4)(a); Jewels v. City of Bellingham. 183 Wn.2d 388, 390, 353 P3d 204 

### (2015). An injury-causing condition is "latent" if it is not readily apparentto the recreational user. The condition itself, not the danger itposes, must be latent. The dispositive question is whetherthe condition is readily apparentto the general class ofrecreational users, not whetherone user mightfail to discover it. This is an objective inquiry. Jewels, 183 Wn.2d at 398. Olson contends thatthe condition is latent because the concrete step where her injury occurred blends into the track, making the danger invisible from her perspective as someone coming down from the bleachers. She points out thatthere were no distinctive markings to call attention to the unexpectedly high drop-off. She admits that a step was expected but argues that she did not expect
one so high.No. 72865-2-1/8 Latency does not depend on the vantage point ofthe recreational user. 

### Tennyson v. Plum CreekTimber Co.. 73 Wn. App. 550, 555, 872 P2d 524, review 

### denied, 124Wn.2d 1029 (1994). Latency is not based on the particularactivity the recreational user is engaged in or the particular user's experience with the


### area from earliervisits or expertise inthe specific recreational activity. The relevant inquiry is whether an ordinary recreational user standing nearthe injurycausing condition "could see it by observation, withoutthe need to uncover or manipulate the surrounding area." Jewels. 183 Wn.2d at400; see also Van Pinterv. City of Kennewick, 121 Wn.2d 38, 46, 846 P2d 522 (1993) (when the 

### condition itself is patent, the statute's requirement oflatency is not satisfied by showing thatthe danger presented is latent). There can be no dispute that an ordinary recreational user standing near the concrete step could see it. Photographs inthe record confirm thatthe change in elevation between the bleachers and the trackfield would be obvious to the ordinary recreational user. See Jewels, 183 Wn.2d at400. As a matter of law, the condition was not latent. The District has met its burden of showing thatthe recreational use immunity statute applies. Olson has not presented facts that overcome this immunity. We need not address the District's alternative argumentthat summary judgment is appropriate on the basis thatthe District did not breach its duty. Affirmed.No. 72865-2-1/9


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