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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KATTI A. HOFSTETTER, a single woman, Appellant,

v. CITY OF BELLINGHAM, a municipal corporation, Respondent. NO. 68156-7-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: August 12, 2013


### Lau, J. —Katti Hofstetter sustained catastrophic injuries afterfalling from a cliff 

### above a popularswimming hole, known as the "whirlpool," in the City ofBellingham's Whatcom Falls Park. Hofstetter sued the City of Bellingham, alleging its negligence 

### proximately caused herinjuries and damages. TheCity claimed immunity from liability under the recreational use statute, RCW 4.24.210. Thejury returned a verdictfinding 

### no recreational use immunity because itfound the whirlpool area was closed when 

### Hofstetterwas injured. It also found the City not negligenton Hofstetter's premises 

### liability claim. Hofstettercontends thetrial courterroneously denied herpartial summaryjudgmentmotion, which sought to remove the issue ofrecreational use immunity from the jury'sconsideration. Finding noerror, we affirm. 

### TheCity denied negligence and asserted recreational use immunity as an affirmative defense to Hofstetter's personal injury complaint. The recreational use68156-7-1/2
statute provides that landowners who "allow" members ofthe public to use their land for 

### outdoor recreation "shall not be liable for unintentional injuries to such users." 

### RCW4.24.210(1). Its purpose is "toencourage owners or others in lawful possession and control of land
... to make them available to the public for recreational purposes by 

### limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions ofpersons entering thereon." RCW 4.24.200. 

### TheCity moved for summaryjudgment, invoking recreational use immunity.1 It argued immunity from liability as a matter of lawbecause Whatcom Falls Park charged no fee for public outdoor recreational use. Hofstetter opposed the motion, arguing that material fact issues remained as to whether the City "allowed" public recreation in the 

## whirlpool area.2 Sheargued, "The evidence in the record supports afinding offactthat the City did not intend to hold the area where plaintiffwas injured open to the public for outdoor recreation." The trial court denied the motion, agreeing with Hofstetter that questions offact existed overwhether the City allowed the public to use the whirlpool area on the day Hofstetter was injured. Itsigned Hofstetter's proposed form oforder, which stated, "The record demonstrates that a genuine issue ofmaterial fact exists concerning whether



### 1Afterconducting additional discovery, the Cityfiled a secondsummary judgment motion. Neither party raises any issue related to this motion. 

### 2Hofstetterfiled no cross motion for partial summaryjudgmentonthis issue.

-2-68156-7-1/3
defendant intended to hold the area where plaintiffwas injured open to the public for recreational use."3 Approximately one month before the scheduled trial date, Hofstetter filed a motion for partial summaryjudgment, asking the court to "strike" the City's recreational


### use immunity affirmative defense. Contrary to her earlier position opposing the City's summaryjudgment motion on factual issues, she now argued summaryjudgment should be granted in herfavor because no material fact issues remained because the whirlpool area was undisputedly closed. To support this contention, she submitted the 

### deposition of park operations manager Marvin Harris. She claimed his testimony showed the City closed the whirlpool area due to possible contamination from a 1999 pipeline explosion. She argued that since the area was undisputedly closed as a matter of law, the City was not entitled to present its immunity defense at trial. The City opposed Hofstetter's motion, observing that Hofstetter's argument conflicted with her previous assertion that thejury should decide the City's entitlement to immunity. The City argued, "For [Hofstetter] to wait until this period oftime right before trial to then assert thatjustthe opposite ofthat, that no material issue offact exists on that immunity defense, isjust, it's not fair, and there should bejudicial 

### estoppel in that respect."4 VRP (Dec. 17, 2010) at 6.



### 3We have noted, "The summaryjudgmentprocedure is designed toavoid useless trials. Where there is a genuine issue as to any material fact, however, a trial is not useless, but is absolutely necessary." Moore v. Pac. Nw. Bell, 34 Wn. App. 448, 456, 662 P.2d 398 (1983). 

### 4TheCity does not argue on appeal thatjudicial estoppel orinvited errorapplies here. -3-68156-7-1/4
The City also argued that genuine issues of material fact remained as to whether it allowed public recreation in the whirlpool area on the date of the accident. It acknowledged that "active use" of the whirlpool area had been restricted "for a relatively short period oftime immediately following the [1999] pipeline explosion . . . ." VRP (Jan. 14, 2011) at 16. But itclaimed that concerns over petroleum contamination had subsided before Hofstetter's accident, prompting city officials to allow the public to
resume recreation in the whirlpool area. The court denied Hofstetter's motion. Itnoted the motion presented the "same issues" as those underlying the City's earlier summaryjudgment motion. VRP (Jan. 14, 2011) at 23. Itexplained, Ijust went back, and Iput up the order that the Court entered the first time on summaryjudgment, and the Court said, the order says, "The Court finds that the record demonstrates a genuine issue of material fact concerning whether the Defendant intended to hold the area where Plaintiff was injured open to the public for recreational use . . . ."

. . . The issues ofwho got to go in there and whether itwas open or closed were argued to the Court the first time. Ireally don't think we've progressed, even through your recent discovery, past the point that Ithink we were at the last time when we had the first summaryjudgment, which Ithink that these are still issues offact on both sides. VRP (Jan. 14, 2011) at 22. The court properly ruled, as it did the first time, that the 

### issue ofrecreational use immunity was ajury question.5 It iswell settled that"[a] summaryjudgment denial cannot be appealed following a trial ifthe denial was based upon a determination that material facts are disputed and must be resolved by the fact finder." Brothers v. Pub. Sch. Emps. ofWash., 88 Wn. App. 398, 409, 945 P.2d 208 (1997).

### 5Our review of the record shows material fact issues on the question of whether the whirlpool area was open to the public for recreation on the injury date. -4-68156-7-1/5 

### Thejury answered questions in the special verdictform6 that addressed the recreational use immunity andcommon law negligence issues.7 Hofstetterprevailed on the issue of recreational use immunity: Question No. 1: At the time of Plaintiff's accident, did the City of Bellingham allow the public to use the Whirlpool Falls area ofWhatcom Falls Park for outdoor recreation? Answer: No (Write "yes or "no") (Formatting and capitalization omitted.) The City prevailed on the issue of negligence: Question No. 3: Atthe time of her injurywhat was Plaintiff Katti Hofstetter's status on the land in the Whirlpool Falls area ofWhatcom Falls Park? ANSWER: Invitee:
. . . Licensee: [X] Question No. 3: Was the Defendant City of Bellingham negligent? Answer: No (Write "yes or "no") (Formatting and capitalization omitted.) 

### Underthe circumstances here, wefind noerror.8
Hofstetter claims the denial ofher partial summaryjudgment motion "deprived 

### her of the opportunity and right to effectivelypresentthe evidence establishing her 

### 6Hofstetterdid not object to any of the questions or the form of the special verdict. 

### 7Hofstetter assigns errorto thetrial court'sdenial of hermotion forjudgmentas a matter of law, which she brought at the close of all evidence at trial. She acknowledges 

### this challenge "entails the same issues and launches essentially the same analysis as the question as to whetherthe court erred in denying the motion for partial summary 

### judgment." Br. of Appellant at 33. The challenge fails for the reasons discussed below. We also note that Hofstetter's opening briefing on this issue purports to argue using 

### incorporation byreference. We do not allow this form ofargument. Diversified Wood Recycling, Inc. v. Johnson, 161 Wn. App. 859, 890, 251 P.3d 293, review denied, 172 Wn.2d 1025 (2011). 

### 8We do notaddress the question of whether immunity exists ifa member of the 

### public enters land that is open for public recreational use but sustains an injury in a portion ofthe land that is closed to the public. -5-68156-7-1/6 theory ofthe case." Br. ofAppellant at 49. She explains, "[l]t is submitted that a 

### thorough examination ofthe record in this case reflects that, based on her theory of the 

### case, the plaintiff's lawsuit against the Cityhas considerable merit and, accordingly, deserves a trial that is not infiltrated by confusing and distracting evidence relating to 

### recreational use immunity." Br. ofAppellant at 34. We are not persuaded by this speculative and unsupported claim. Hofstetter cites nothing inthe record to supportjury confusion. This claim fails. Plaintiff's Proposed Jury Instruction 38 Hofstetter also challenges the trial court's refusal to give proposed instruction 38, which identified an agency relationship between the City and its employees: PLAINTIFF'S PROPOSED INSTRUCTION NO. 38 An agent is a person employed to perform services for another called the principal. Inthis case the employees ofthe City of Bellingham who testified at trial were agents ofthe City. The City is charged with, and bound by, the knowledge of or notice to its employees received while they were acting within the scope oftheir employment. Without the instruction, she argues, somejurors might refuse to consider the testimony of park employees when deciding whether the City was negligent. This challenge fails because our record shows Hofstetter offered a different rationale for the instruction below. We need not review a rationale presented for the first time on appeal. See Stewart v. State, 92 Wn.2d 285, 298, 597 P.2d 101 (1979) ("objection [to instruction or refusal to give instruction] must apprise the trialjudge ofthe precise points of law involved and when itdoes not, those points willnot be considered on appeal."); Siqurdson v. City of Seattle, 48 Wn.2d 155, 163-64, 292 P.2d 214 (1956) (declining to review instructional challenge on ground that, at the time exception was taken, "the68156-7-1/7



### reason given the trial court was not the reason urged before this court."). In any event, the court properly exercised its discretion in declining to give this instruction. Whether employees were agents ofthe City was not disputed at trial. Hofstetterfails to establish 

### that the court's failure to instruct the jury on agency deprived her of the opportunity to argue her case to the jury. The trial court had no duty to give an irrelevant or 

### unsupported instruction.9 Jaegerv. CleaverConstr., Inc., 148Wn. App. 698, 716, 201 P.3d 1028 (2009); Ethridge v. Hwang, 105 Wn. App. 447, 456, 20 P.3d 958 (2001).
We affirm.

WE CONCUR: 

# W^tfw.J, A^L^K 

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9To the extentHofstetterraised a challengeregarding instruction 18,the issue is waived. Hofstetter concedes she assigned no error to the court's provision of Instruction 18. Under RAP 10.3(g), "[a] separate assignment oferrorfor each instruction which a party contends was improperly given or refused must be included with reference to each instruction or proposed instruction by number. ..." Further, the 

### record shows Hofstettertook no exception to instruction 18 below. Generally, the failure to take exception waives any challenge on appeal. Estate of Ryder v. Kelly-Springfield Tire Co., 91 Wn.2d 111, 114, 587 P.2d 160 (1978).