IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE JON L. WILKERSON, Appellant,

v. CITY OF SEATAC, Respondent. No. 66524-3-1

ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING OPINION


### The appellant, Jon L. Wilkerson, filed a motion for reconsideration. The 

### respondent City ofSeaTacfiled ananswer. Thepanel having determined thatthe motion should be denied but the opinion amended; now, therefore, itis hereby ORDERED that the motion for reconsideration is denied. 

### IT IS FURTHER ORDERED that the opinion of this court in the above-entitled
case filed November 5, 2012, shall be amended as follows: 

### 1. On page 3,between the secondparagraph ending with thesentence: "But Wilkerson said that he had no concerns about his ability to accomplish the 

### jump," and thethird paragraph beginning with the sentence: "Wilkerson testified that he 'gauged the speed to be appropriatefor the gap' and 

### approached thejump 'moderate tofast, the speed neededto getoverthe gap,'" insert the following paragraph and block quote: In his declaration in opposition to summaryjudgment, Wilkerson 

### states he "reviewed" the jump,including "thepitch of the take-offjumpNo. 66524-3-1/2 

### itself and the size of the jump and the gap and thought everything looked ok," but "did not take a practice 'run in.'" The declaration states, in pertinent part: 14. Ithen rode overto a smallerjump (which had a crevice 

### or drop inthe middle) called a gapjump and feltthat it was well within my "skill set"; 

### 15. Ithen generally reviewed the jump, including the pitch of the take-offjump itselfand the size ofthejump and the gap and thought everything looked ok; 

### 16. That is, looking at thejump itself, it looked fine for me to take; 17. Idid not measure the gap width, nor the pitch ofthe jump nor the pitch ofthe landing; 23. Ialso did not take a practice "run in" leading up to the 

### jump because Ihad no reason to thinkthat there was some dangerto me from the approach to thejump or that the approach would be problematic or prevent me from clearing thejump. 

### 2. On page 4 in the second full paragraph, replace "Bayler Institutefor Rehabilitation" with "Baylor Institute for Rehabilitation." The remainder ofthis opinion shall remain the same. 

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.. —to en -^ o-n.IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JON L. WILKERSON, Appellant,

v. CITY OF SEATAC, Respondent. No. 66524-3-1 DIVISION ONE UNPUBLISHED OPINION

FILED: November 5, 2012 r-J w c C=>
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.,— Z-' *• '"- o Z->,Ji Schindler, J. — Jon Wilkerson challenges the decision on summaryjudgment tor, dismiss his lawsuit against the City of SeaTac based on the recreational land use immunity statute, RCW4.24.200-.210. We affirm. FACTS The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the 

### public for recreational use. The City ofSeaTac (City)owns and operates the portion of 

### thepark located within theCity,1 including dirt mounds in theparkthatbicyclists use as bike jumps. The dirtjumps, known as "the Softies," are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirtjumps. InJune 2006, 30-year-old Jon Wilkerson moved from Arkansas to Kent, 

### Washington to work as a physical therapist. Wilkerson had plans to go mountain biking at Whistler in British Columbia with friends in July. Wilkerson testified that he considered 1TheCity of DesMoines and the PortofSeattleown and operate otherportions ofthepark.No. 66524-3-1/2 

### himselfan "experienced mountain biker" and had previously usedBMX2 and mountain bikes to do ramp and dirtjumps. About a week after moving to Kent, Wilkerson went to a bike shop to buy a new helmet. Wilkerson asked the bike shop manager "about nearby parks that had dirtjumps

— where Icould ride my bike and practice making jumps in anticipation of [the] bike trip to Whistlerwith friends." The bike shop manager told Wilkerson about the Des Moines 

### Creek Trail Park and the "BMX style dirt jump[s]," and "told [him] how to getto [the Softies]." On June 21, Wilkerson drove to the Des Moines Creek Trail Park. Wilkerson 

### arrived at the park between 5:00 and 6:00 p.m. and parked his Ford Expedition inthe parking lot located at South 200th Street. Wilkerson left his cell phone in his car. 

### Wilkerson testified that he wentto the park that day to train and "work[] onjumps that I knew that Iwould need to be able to clear at Whistler.
... Iwas working that day to prepare to do more advanced techniques at Whistler." After riding around the parkfor about 30 to 45 minutes on "single [bike] track trails," Wilkerson testified that he followed the directions he received from the bike shop manager to get to the Softies. Wilkerson said he "rode down a ravine, crossed a creek, walked [his] bike up and the softies were on the right." When he arrived at the Softies,

no one else was there. Wilkerson testified that he examined the dirtjumps and understood the importance ofthe "approach speed," as well as the condition ofthe track and the height and pitch of thejumps. Wilkerson said that he rode his bike over thejumps to "try some ofthem out" before selecting a smaller "gapjump." Wilkerson said he decided the other
2(Bicycle motocross.)No. 66524-3-1/3 

### jumps "weren't within my skill set" because they were "too steep" and "tooclose together," and concluded the smaller gapjump was "within my skill set." 

### The dirt jump Wilkerson selected contained "twomounds with a gap in between." Wilkerson testified that he inspected thejump before attempting it, and rode down the approach to check the pitch and surface composition. Q But you did check thejump out before you went off of it, correct? A I did. Q And, you rode down and actually, with the intention of checking itout before you went off of it, correct? A I did. 

### Q And, you were looking for things likethe pitch ofthejump, correct? A Yes. Q You were looking to see ifthe composition ofthe surfaces was adequate, correct? A Yes. Q You were looking to see ifthejump was safe before you went offofit, correct? A Yes. Wilkerson testified that he concluded "there was enough of a grade to [carry] me 

### into [sic] with a moderate to fast amount ofspeed." Wilkerson admitted that it had been at least a couple ofyears "since I'ddone a gapjump." But Wilkerson said that he had no
concerns about his ability to accomplish thejump. 

### Wilkerson testified that he "gauged the speed to be appropriate forthe gap" and 

### approached the jump "moderate to fast, the speed needed to get over the gap." Wilkersonmissed the jump and "[t]umbled forward" over the front of the bike. Wilkerson testified, in pertinent part: 

### On the back side of the jump for some reason my back wheel didn't make it 

### all the way over the berm of the back side of the jump. So, it impacted the top of the berm, rebounded and knocked me over the front of the bicycle.No. 66524-3-1/4 

### Wilkerson hit the ground head-first and landed on his backfive or six feet beyond the jump. Wilkerson was unable to move. Wilkerson called for help for some time before losing consciousness. 

### At about 1:00 a.m., a Cityemployee reported seeing Wilkerson's car inthe 

### parking lot. Two bicyclists found Wilkerson at about 11:00 a.m. and called 911. Emergency personnel immediately responded and transported Wilkerson to Harborview Medical Center. Wilkerson suffered from hypothermia and went into cardiac arrest. 

### During "life-saving efforts," Wilkerson's lung was lacerated. Wilkerson successfully underwent surgery for the laceration. The doctors at Harborview diagnosed Wilkerson with a C4-C6 vertebra fracture. Wilkerson is quadriplegic. After an assessment inArkansas in September 2006, Wilkerson participated in 

### the program at the Bayler Institute for Rehabilitation inTexas. During the assessment, Wilkerson said that although he was an experienced mountain biker, as he went overthe 

### jump, he came down "wrong" because he" 'was a bit out ofpractice'" and " 'a little too bold.'"

### Wilkerson filed a lawsuit againstthe City alleging the Citybreached the duty to
use reasonable care in failing to maintain the park and "allowing man-madejumps to 

### remain despite the . . . inherent dangerthe jumps posed." The complaint also alleged 

### the Citybreached the duty to supervise the park and report Wilkerson's vehicle "to authorities." Wilkerson claimed the failure to report seeing his car inthe parking lot 

### caused him to suffer hypothermia and injury to his lungs. The City denied the allegations and asserted a number of affirmative defenses, including immunity underthe recreational land use statute, RCW4.24.200-.210.No. 66524-3-1/5 

### The City filed a motion for partial summaryjudgmentto dismiss the claim that the 

### Citybreached the duty to remove the dirtjumps. The Cityargued that because there
was no evidence of a known dangerous artificial latent condition, the claim was barred by the recreational land use statute. Wilkerson argued there were genuine issues ofmaterial fact as to whether the 

### approach to the gapjump was a known dangerous artificial latent condition. Wilkerson 

### also argued that the City's failure to remove, redesign, or maintain the dirt jumps was "willful and wanton conduct [that] rises to the level of intentional conduct." 

### In support of his argument that the approach to the gapjump was a latent 

### condition, Wilkerson submitted the declarations ofSamuel Morris, Jr., a professional mountain bike racer; Lee Bridgers, the owner of a company that conducts mountain bike 

### jumping clinics; and hisown declaration.3 Inhis declaration, Wilkerson states that he did not "see[] or appreciate[] the Scurved, angled lead-in to thejump." Morris states that in his opinion, itwas not thejump itselfthat caused Jon to crash, but the curvy nature of 

### the lead-in, or approach, to the jump, which more probably than not reduced his speed enough to prevent him from successfully completing the jump..
.. While Jon testified that he reviewed the size ofthe gap and the pitch ofthejump, what he did not consider and what a beginnerto even an intermediatejumperwould mostly likely not consider because ofthe subtleness is the curved approach leading into thejump and the effect that the approach would have on the ability ofthe rider to complete thejump. These conditions would not be apparent to a rider of Jon's skill level. Bridgers testified that the cause ofthe crash was the "lack of speed due to the twists and turns in the approach." [T]he curvy lead-in to thejump prevented Jon from successfully attaining


### 3In supportofhis assertion thattheapproach to thegapjumpwas a "known" and"dangerous" condition, Wilkerson submitted excerpts from the deposition ofthe City's Acting Fire Chiefand incident reports of bicycle accidents. 5No. 66524-3-1/6 

### the speed necessary to complete thejump and was the primary cause of Jon's injury. 

### Bridgers stated that in his opinion, Wilkerson did not appreciate the S-curve approach. While the S-curve afterthe berm is not visibly dramatic, itaffects the 

### direction, physics, and speed ofthe rider attempting to take thejump and therefore has a significant impact on the rider's ability to successfully clear thejump, especially on a first attempt. This is something that Jon 

### obviously did not notice or appreciate and which clearly had an impact on his ability to make thejump. 

### The court granted the motion for partial summaryjudgment. Even assuming the effect of the S-curve approach to the jump was not readily apparentto Wilkerson, the court concluded itwas not a latent condition. The court ruled that as a matter of law, the inability to appreciate the risk does not constitute a latent condition. 

### So for purposes ofthe summaryjudgment, Iam assuming thatthe trail, the approach leading to thejump was curved in some fashion such 

### that it would have limitedthe speed of a biker who arrived at thejump site. Iam going to further conclude, for purposes ofthe summary 

### judgment, that it would not have been readily apparent to the biker that he could not acquire sufficient speed to clearthejump. [T]here is no testimony that you couldn't see the path. The path was there. The path was not submerged; itwas not invisible. Whether itwas straight or curved, itwas the path that one could see. [T]here are no cases where the courts have said you can look directly at it, you can see what is there to be seen, and the inability to appreciate the risk posed constitutes latency. Ididn't see any cases like that. Ifind as a matter of law that the lead up, whether itwas curved or straight, is not the latent condition required under the statute, and itdoes not abrogate the statutory immunity. The court also concluded there was no evidence that the City acted with willful and wanton disregard for a danger posed by the Softies. Iwould also suggest that there is no evidence here that would rise to the level of willful and wanton disregard, ifindeed that is the standard in Washington. Iwill accept for a summaryjudgment proposition that the city knew or should have known thesejumps were out there, they knew or shouldNo. 66524-3-1/7 have known that they were dangerous and there have been prior accidents, and thatthey did not go in and sign it or remov[e them i]s not the standard for recreational use immunity. 

### The "Order Granting Defendant SeaTac's Motion for Summary Judgment Re: Recreational Use Immunity" dismisses the claim that "the City ofSeaTac owed 

### [Wilkerson] a duty to protect him from his failed mountain bike jump" at the Des Moines Creek Trail Park. The court denied Wilkerson's motion for reconsideration. 

### The Citythen filed a motion for summaryjudgment dismissal ofWilkerson's claim that the Citybreached the duty to supervise the park and report seeing Wilkerson's vehicle inthe parking lot. The City argued that the recreational land use statute and the public duty doctrine barred these claims. 

### Wilkerson argued the recreational land use statute did not apply to the cardiac and lung injuries he suffered as a result of remaining inthe park overnight because he
was no longer engaged in recreation. Wilkerson also argued that the City assumed a duty to users ofthe park to exercise reasonable care in patrolling the park. The court granted summaryjudgment. The court ruled that the recreational land
use statute barred Wilkerson's claim that the City was liable for the injuries Wilkerson suffered as a result ofthe crash. The court's oral ruling states, in pertinent part: Imean to suggest that a landowner is immune from someone using their land for recreation, but ifthey get hurt, then a new duty arises to come take care ofthem and to use reasonable efforts to make sure they are safe after they are injured, as opposed to being safe before they are injured, really stretches ittoo far. [T]o suggestthe landowner has a duty not to protectthe person from injury, but to treat them afterthey are injured, or to be alert to the fact of injury, even though they are not alert to preventthe injury, makes no
sense. So Iam ruling that in the circumstances of having failed to detect 

### him injured on site and failed to having brought medical services to himfastNo. 66524-3-1/8 

### enough, the city is stillacting in its capacity as landowner. 

### The "Order Granting Defendant SeaTac's Motion for Summary Judgment Re: Duty to Rescue" dismisses Wilkerson's claim thatthe City "owed him a duty to supervise and
rescue him sooner."4
ANALYSIS 

### Wilkerson contends the trial court erred indismissing his negligence claims againstthe Cityunderthe recreational land use immunity statute, RCW4.24.200-.210, 

### and the court erred in concluding thatthe statute barred his claim for "hypothermia and cardiac and lung injuries." 

### We review summaryjudgment de novo and considerthe facts and all reasonable 

### inferences inthe lightmostfavorable to the nonmoving party. Hearst Commc'ns, Inc. v. 

### Seattle Times Co.. 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summaryjudgment is appropriate only ifthere is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bulman v. Safewav, Inc.. 144 Wn.2d 335, 351, 

### 27 P.3d 1172 (2001). A party cannot rely on allegations inthe pleadings, speculation, or argumentative assertions that factual issues remain. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). The recreational land use statute, RCW 4.24.200-.210, grants immunity to landowners for unintentional injuries to recreational users ofthe land. The statute modifies a landowner's common law duty in order "to encourage landowners to open their lands to the public for recreational purposes." Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001). Because the recreational land use statute is 4Wilkerson filed a motion tocompel theCity toproduce discovery, which thecourtdenied. Wilkerson appeals the orderdenying the motion to compel but does not assign error to the order or address it in the briefs. Accordingly, the issue is waived. RAP 10.3(a)(4); Hollis v. Garwall, Inc., 137 Wn.2d 683, 689 n.4, 974 P.2d 836 (1999). 8No. 66524-3-1/9 in derogation ofcommon law, it is strictly construed. Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437, 824 P.2d 541 (1992). Under RCW 4.24.200, the purpose ofthe recreational land use statute is 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 liabilitytoward persons entering thereon and toward persons who may be injured or otherwise damaged by 

### the acts oromissions of personsentering thereon.[5] Under RCW 4.24.210, a landowner is immune from liability for unintentional injuries unless the injury is caused by a known dangerous artificial latent condition "for which warning signs have not been conspicuously posted." RCW 4.24.210 states, in pertinent part:(1) [A]ny public or private landowners
... or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members ofthe public to use them for the purposes of outdoor recreation, which term includes, but is not limited to,. .. bicycling,

. . . without charging a fee ofany kind therefor, shall not be liable for unintentional injuries to such users. (4)(a) Nothing in this section shall preventthe liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted. 

### To establish the Citywas not immune from suit under RCW4.24.210, Wilkerson must show the Citycharged a fee forthe use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis, 144 Wn.2d at 616. 

### Here, there is no dispute that the Des Moines CreekTrail Park was open to the 

### public for recreational purposes and no fee was charged. The parties dispute whether 5Thelegislature amended the statute severaltimes between 2006 and2012. Laws of 2006, ch. 212, §6; l_AWSOF2011,ch. 53, §1; LawsOF 2011 ch. 171, §2; Lawsof2011 ch. 320, §11; LAWS of 2012 ch. 15, § 1. The amendments are not pertinent to this appeal. 9No. 66524-3-1/10 the injury-causing condition was latent. Each ofthe four elements of a known dangerous artificial latent injury-causing condition must be present in orderto establish liability under the recreational land use statute. Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920, 969 P.2d 75 (1998). "Ifone of the four elements is not present, a claim cannot survive summaryjudgment." Davis, 144 Wn.2d at 616. Wilkerson asserts there are genuine issues of material fact as to whether the Scurve lead-in was a latent condition, and whether a recreational user would recognize the danger ofthe S-curve approach. Wilkerson contends the S-curve "lead-in to the jump" caused his injuries. For purposes ofthe recreational land use statute, RCW 4.24.210, "latent" means

" 'not readily apparent to the recreational user.'" Ravenscroft, 136 Wn.2d at 924 

### (quoting Van Pinterv. City of Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993)). In determining whether the injury-causing condition is latent, the question is not whetherthe 

### specific risk is readily apparent but, instead, whetherthe injury-causing condition itself is readily apparent. Ravenscroft, 136 Wn.2d at 924. Alandownerwill not be held liable where a patent condition posed a latent, or unobvious, danger. Van Pinter. 121 Wn.2d at 46. Although latency is a factual question, when reasonable minds could reach but
one conclusion from the evidence presented, summaryjudgment is appropriate. Van Pinter, 121 Wn.2d at 47. 

### Evenviewing the evidence in the light most favorable toWilkerson, as a matter of law, the S-curve lead-in was not a latent condition. Atmost, the S-curve approach is a 

### patent condition that "posed a latent, or unobvious, danger." Van Pinter, 121 Wn.2d at
46.

10No. 66524-3-1/11 

### In Van Dinter, the Washington Supreme Court addressed the difference between
a latent condition and a latent danger. In Van Dinter, Van Dinter struck his eye on a protruding metal antenna of a caterpillar-shaped playground toy located next to the grassy area at the park where he was engaged in a waterfight. Van Pinter. 121 Wn.2d at 40. Van Pinter stated that "he did not realize someone on the grass could collide with any part ofthe caterpillar." Van Pinter, 121 Wn.2d at40. Van Pinter asserted "a 

### condition is latentfor purposes of RCW4.24.210 if its injury-producing aspect is not readily apparent to the ordinary recreational user," and argued that "whilethe caterpillar
was obvious, its injury-causing aspect was not." Van Pinter, 121 Wn.2d at 45. The court disagreed with Van Pinter and held that "RCW4.24.210 does not hold 

### landowners potentially liable for patent conditions with latent dangers. The condition itself must be latent." Van Pinter, 121 Wn.2d at 46. While the court expressly acknowledged that "itmay not have occurred to Van Pinterthat he could injure himselfin 

### the way he did," the court concluded that "this does not show the injury-causing condition

— the caterpillar's placement

— was latent..
.. The caterpillar as well as its injurycausing aspect — its proximity to the grassy area
— were obvious." Van Pinter, 121 Wn.2d at 46. 

### Here, Wilkerson's experts testified that the danger posed by the S-curve approach
was not "obvious" to "beginning to intermediate" bikejumpers. [T]he S-curve
... affects the direction, physics, and speed ofthe rider attempting to take thejump
.... It is my opinion thatthe dangers posed by the S-curved lead-in to thejump were not obvious for [Wilkerson] and other 

### beginning tointermediatejumpers.161

6(Emphases added.) 11No. 66524-3-1/12 

### Morris testified that itwas unlikelythatWilkerson or otherjumpers would "consider

... the effect that the approach would have." While [Wilkerson] testified that he reviewed the size ofthe gap and the pitch ofthejump, what he did not consider and what a beginnerto even an 

### intermediatejumperwould most likely not consider because ofthe subtleness is the curved approach leading into thejump and the effectthat 

### the approach would have on the ability oftheridertocompletethejump.171 The testimony thatWilkerson did not "appreciate" the danger ofthe S-curve approach to thejump does not establish a latent condition. As inVan Pinter, at most, 

### Wilkerson's failure to "appreciate" the S-curve lead-in "shows thatthe present situation is
one in which a patent condition posed a latent, or unobvious, danger." Van Pinter, 121 Wn.2d at 46. The cases Wilkerson relies on, Ravenscroft and Cultee v. City ofTacoma, 95 Wn. 

### App. 505, 977 P.2d 15 (1999), are distinguishable. InRavenscroft, a man was injured when the boat he was riding in hit a rooted tree stump submerged in a channel ofwater 

### that formed part of a dam reservoir. Ravenscroft, 136 Wn.2d at 915. The driver of the boat testified that "he saw nothing thatwould indicate the presence ofany submerged 

### objects or hazards in the direction he was traveling." Ravenscroft, 136Wn.2d at 916. Otherwitnesses testified that other boats had hitthe stumps. Ravenscroft, 136 Wn.2d at
925. 

### The court identified the injury-causing condition as the "man-created water 

### course, containing a submerged line of tree stumps" that was "created by [the 

### WashingtonWater PowerCompany] cutting down trees, leaving stumps near the middle of a water channel, then raising the river to a level which covered the stumps." Ravenscroft, 136 Wn.2d at 923. The court concluded that summaryjudgmentwas not
7(Emphases added.) 12No. 66524-3-1/13 

### appropriate because "[t]he record does not support a conclusion thatthe submerged stumps near the middle of the channel were obvious or visible as a matter of law." Ravenscroft, 136 Wn.2d at 926. 

### InCultee, a five-year-old girl rode a bicycle on a road with an eroded edge that
was partially flooded by the Hood Canal tidal waters. Cultee, 95 Wn. App. at 509. The 

### girl fell into the water and drowned at a pointwhere the road and the eroded edge were covered by two to four inches ofmuddy water and the adjacentfields were covered with several feet ofwater. Cultee, 95 Wn. App. at 510. The court held there were material 

### issues offact aboutwhetherthe condition that killedthe girlwas "the depth ofthe water alone, or a combination ofthe muddy water obscuring the eroded edge ofthe road and
an abrupt drop into deep water;" and whether" 'recreational users' would have been able to see the edge ofthe road, given that itwas eroded and covered with a two-to-four-inch layer of muddy water." Cultee, 95 Wn. App. at 523. Wilkerson also argues that the trial court erred in concluding the recreational land
use statute bars his claim for cardiac and lung injuries. Wilkerson argues the statute does not apply to the injuries he suffered after he missed thejump because he was not "engaged in recreation" or "using" the land when he suffered cardiac and lung injuries. Wilkerson relies on Wisconsin law in support of his argument that the recreational 

### land use statute does not apply to secondary injuries. But unlike RCW 4.24.210(1), the Wisconsin statute predicates landowner immunity on recreational use. The Wisconsin statute states, in pertinent part: "[N]o owner... is liable for... any injury to
... a person 

### engaging inrecreational activity on the owner's property." Wis. Stat. § 895.52(2)(b). By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners "who allow 

### members of the public to use [their lands] for the purposes ofoutdoor recreation." RCW
13No. 66524-3-1/14 

### 4.24.210(1); see also Gaeta v. Seattle City Light, 54 Wn. App. 603, 608-10, 774 P.2d 1255 (1989) (because landowner "open[ed] up the lands for recreational use without a fee," and thereby "brought itself under the protection ofthe immunity statute," landowner
was immune from liabilityregardless ofwhether "a person coming onto the property may have some commercial purpose in mind"). 

### Next, Wilkerson argues thatthe City's willful and wanton or intentional conduct 

### precludes immunityunderthe recreational land use statute because the City knew that 

### other bicyclists had been injured. Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), does not supportWilkerson's argument. 

### InJones, the plaintiffwentto Hurricane Ridge located in Olympic National Park as 

### part of a church-sponsored event. Jones. 693 F.2d at 1300. The plaintiffwas severely 

### injured while riding on an inner tube at Hurricane Ridge. Jones, 693 F.2d at 1300. The plaintiffsued the church and the federal government. Jones. 693 F.2d at 1300. Thejury returned a verdictagainst the church but found the plaintiffwas also negligent. Jones, 693 F.2d at 1301. The trial court enteredjudgment in favor ofthe federal government 

### under Washington'srecreational land use statute on the grounds that the plaintiffdid not

Q 

### establish the government's conduct was willful orwanton. Jones, 693 F.2d at 1300-01. On appeal, the plaintiffargued the court erred in concluding the government's conduct was not willful or wanton underthe recreational land use statute. Jones. 693 

### F.2d at 1301. Theplaintiffasserted that the government's failure to "'putup signs and

8 The evidence established that the extent of the danger was not actually or reasonably known to the Government. Its failure to put up signs and ropes was negligence which 

### proximately contributed to theplaintiffs accidentbut itdid notconstitute "an intentional failure to do an act" norwas it"in reckless disregard of the consequences." Jones, 693 F.2d at 1304 (internal quotation marks omitted). 14No. 66524-3-1/15 ropes'" was deliberate and the government" 'knew or should have known'" ofthe dangerous condition. Jones, 693 F.2d at 1304. The Ninth Circuit affirmed. Jones, 693 F.2d at 1305. The Court distinguished
cases that involved specific acts ofthe government that create a dangerous condition, and held that" '[w]anton misconduct is not negligence since itinvolves intent rather than inadvertence, and is positive rather than negative.'" Jones. 693 F.2d at 1305 n.21 

### (quoting Adkisson v. City ofSeattle. 42 Wn.2d 676, 687, 258 P.2d 461 (1953)). Because the government did not create the injury-causing condition, and the " 'impact oftubing and the inherent dangers
. . . were not apparent to the public or the Government,'" the Court concluded the failure to put up signs or ropes was not intentional and willful or wanton conduct under the recreational land use statute. Jones, 693F.2dat1305. 

### We agree withthe district court that, "While itwas negligence on the Government's part not to put up signs or ropes, its failure to do so does not rise to the status ofwillful and wanton conduct under the law of Washington." Jones, 693 F.2d at 1305. 

### Here, as inJones, there is no dispute thatthe City did not create the dirtjumps or 

### S-curve approach. While the allegedfailure of the City to "bulldozethe Softies" or post 

### warning signs mayconstitute negligence, it is notwillful orwanton conduct under the recreational land use immunity statute. 

### Wilkerson also claims the City assumed a duty to supervise and patrol the park. 

### Wilkerson points to the sign the City posted in the parking lotand the failure to take 

### some action after the City employee saw his car in the parking lotat 1:00 a.m. The sign

15No. 66524-3-1/16 

### posted at the entry to the Pes Moines Creek Trail Park parking lot stated: Park is patrolled by City of SeaTac Police Pepartment.
.. Park is operated by City of SeaTac Parks &Recreation Pepartment..
. Park is closed from dusk to dawn unless otherwise posted Parking
... is only permitted during park hours. Unauthorized vehicles willbe impounded. 

### But inorderto establish liability, Wilkerson must show there is a duty owed to him 

### and not a duty owed to the public ingeneral. Babcock v. Mason County Fire Pist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001). 

### "Underthe public duty doctrine, no liability may be imposed for a 

### publicofficial's negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the 

### breach of an obligation owed to the public ingeneral (i.e., a duty to all is a duty to no one)." 

### Babcock. 144 Wn.2d at 785 (quotingTaylorv. Stevens County. 111 Wn.2d 159, 163, 

### 759P.2d 447 (1988)9). Because the record shows that theCity did notassume a duty or make express assurances toWilkerson, the public duty doctrine bars hisclaim that the City owed him a duty of care. Babcock, 144 Wn.2d at 785-86. We affirm dismissal ofWilkerson's lawsuit against the City.

9(Internal quotation marks andcitation omitted.) 16 WE CONCUR: 

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