# Fll'E ' / IN CLERKS OFFICE """ ....-.:COURT, aTATE OFWASIllNGTCN DATE 

### JUN 1 

### 12015

# ~iJZ IN THE SUPREME COURT OF THE STATE OFWASHINGTON

STEVEN JEWELS, ) ) 

### No.90319-1 Petitioner, ) ) 

### v. ) 

### EnBanc ) 

### CITY OF BELLINGHAM, ) 

### ) Respondent. ) 

### JUN 1 1 2015 ) 

### Filed JOHNSON, J.--This case involves statutory interpretation ofWashington's recreational land use statute, RCW 4.24.210. The plaintiffin this case sued the city ofBellingham for negligence following an injury he sustained when he was thrown from his bicycle aner hitting an obstacle in a city-maintainedpark. Underthe statute, landowners who open their property for recreational use free ofcharge are immune from liability when visitors injure themselves. This statutory immunity does not apply, however, "for injuries sustained to users by reason ofa known dangerous artificial latent condition for which warning signs have not been conspicuously posted." RCW 4.24.210(4)(a). The trial court dismissed the plaintiffs claims on summaryjudgment, and the Court ofAppeals affirmed. As we held in 

### Van Dinter v. City of Kennewick, 121 Wn.2d 38, 846 P.2d 522 (1993), and

### ' Jewels v. City of Bellingham, No. 90319-1

we hold againtoday, the adjectives "known," "dangerous," "artificial," and

. . "latent" each modify the term "condition," not one another. We hold thatthe Court ofAppeals erroneously interpreted the statute by concluding that the plaintiffmust show the city ofBellingham 

### knew the condition was 

### dangerous. However, our review ofthe record supports the trial court's conclusion that the condition in this
case was obvious--that is, not latent. We affirm summaryjudgment in favor ofthe city ofBellingham. FACTS Steven Jewels was injured in a bicycle accident while riding in Cornwall Park, which the city ofBellingham (City) maintains. Jewels rode over a speed bump that caused ajoltto his bicycle. As he approached a second speed bump, he attempted to ride around 

### itin order to avoid anotherjolt. Both speed bumps were painted bright yellow and did not span the entire width ofthe pathway: there was
an unpainted section betweenthe speed bump and the adjacent curb. In his declaration, Jewels asserted that the area betweenthe second speed bump and the curb appeared to him to be "bare, flat pavement." Clerk's Papers (CP) at 92. Unfortunately, this area was not bare, flat pavement. Instead, the City had installed i;m unpainted asphalt berm betweenthe second speedbump and the adjacentrighthand curb. This "water diverter" berm channels water offofthe pathway and into a cutout in the right-hand curb. The water diverter is approximately two inches high. 2Jewels v. City o.fBellingham, 

### No. 90319··1
In its shape and position, the water diverter is essentially a smaller, lower speed bump that extends from the speed bump proper to the curb cutout. Jewels rode his bicycle into this area. The unexpected shock from hitting the water diverter forced his front tire into the curb cutout, throwing him from his bicycle and causing him injury. The day after Jewels's accident, the City's parks and recreation department issued a work order directing the water diverter to be painted the same yellow color as the speed bump. PROCEDURAL HISTORY 

### Jewels sued the City for negligence. The City, in turn, asserted the immunity provided to 

### itunder Washington's recreational land use statute and moved for summaryjudgment. Jewels countered, arguing that his claim fell within the statutory exception for injuries caused by "aknown dangerous artificial latent condition." RCW 4.24.210(4)(a). He argued thatthe City knew aboutthe water diverter**(~aving** 

### installed it) and that the water diverter was dangerous, man made, and difficult to see. Jewels introduced declarations from himselfand other bicycling experts in support ofhis argument that areas next to speed bumps are usually flat. The City introduced several photographs ofthe area where the accident occurred. These photographs were taken after the accident and after the water diverter was painted bright yellow to match the speed bump.

3

### Jewels v. City of Bellingham, No. 90319-1
The tria1 court granted summaryjudgmentin favor ofthe City. Itruled that Jewels had failed to establish a material issue offact that the water diverter was latent: ' . ' . '

.I agree that when it wasn'tpainted, it wasn't as obvious as the yellow speed bump. Nonetheless, it is two or two and a halfinches high apparently. Itwas within view. Mr. Jewels was - it's not something that he couldn'thave seen had he looked, andthat is really the standardunder this statute. Ifyou can see it, you know it, you shouldbe aware ofit. And so I think that despite Mr. Jewels' unfortunate

.circumstances; and I think his assumption that he could ride to the

side ofthe, ofthe speed bump might very well be a good assumption, and

# rm not striking the expert opinion, so you know, ifthey indicate, one ofthem indicate that is what bicyclists commonly do, and I don't see that as being a problem, but I do thinkthat this bump even ifnot ' painted was large eriough 

### and wide enough that 

### itwas clearly obvious

and clearly visible. So it is not a latent condition. Verbatim Reportof**Pro.<.~eedings** (July 27, 2012) (VRP) at 18-19. Secondarily, the trial court concluded that the water diverter was not a "known dangerous condition to the City, because there is no evidence whatsoever that the City knew

# or should have known or would have knownthat it was dangerous.'' VRP 

### at 19. The trial court denied Jewels's motion for reconsideration, confirmingits conclusionthatthe condition was not latent and thatthe City did not know the condition was dangerm1s.

4

### Jewels v. City ofBellingham, No. 90319-1

·. The Court of;Appeals affirmed dismissal in a split decision. 

### Jewels v. City of Bellinghq,m, 180**'Nn~** App. 605, 324 P.3d 700 (2014). ,The majority ofthe Court of Appeals reasoned that.in order to establish a "known condition" under the recreational use statute, 

### a plaintiffmust show that the defendant "also lmewthat [the condition] was dangerous and latent." 

### Jewels, 180 Wn. App. at 611. Concluding that Jewels had failed to show that the City knew the condition was dangerous, the Court ofAppeals did not reach the issue ofwhetherthe condition
was latent. In diss'ent, 

### Judge Becker argued that the plaintiffmust show only that the Cityknewthe injury-causing condition exists in order to overcome the statutory immunity, notthatthe Citylmew the condition was dangerous. 

### Jewels, 180 Wn. App. at 617 (Becker, J., dissenting). We granted review. 

### Jewels v. City of Bellingh.am, 181 'Nn.2d _1001, 332 P.3d 985 (2014). STANDARD OF REVIEW Statutory interpretation is a question oflaw, which we review de novo. 

### State

. .· . . 

### V.·**A~mendariz,** 160 V\Tn.2d 106, 110, 156 P.3d 201 (2007). Our startingpoint is**al~ays** the**s~atute's** plain language and ordinary meaning. 

### Ifthe language is urnunbiguous, our review is at an end. But ifthe language is opento more than one reasonable interpretation, we may apply our recognized canons ofstatutory constructionto arrive at the legislature's intent. 

### State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). ' ,' ' ' 

### 51le1vels 

### v. City 

### of Bellingham, No. 90319-1

ANALYSIS Washington'·srecreational land use statute aims to encourage landowners to opentheir lands to the public by modifying the common law duty owedto invitees, licensees, and trespassers. Davis v. State, 144 Wn.2d 612, 615-16, 30 P.3d 460 (2001}. Inrelevant part, the statute reads: (1) Except as otherwise provided in subsection (3) or (4) ofthis section, any public orprivate landowners
... who allow members of the public to use them for the purposes ofoutdoor recreation
... without charging a fee ofany kind therefor, shall notbe liable for unintentional injuries to suchusers. (4)(a) Nothing in this section shall preventthe liability ofa landowner or others in lawful possession and control for injuries sustained to users byreason ofa known dangerous artificial latent condition :for which warning signs have notbeen conspicuously posted. RCW 4.24.210. 1 In short, landowners who opentheir land to the public for recreational

' ' purposes, free ofcharge,_are generally not liable for unintentional injuries to such
users. However,:·the statute creates an exception where an injuredparty may
overcome this immunity by showing either "(1)·a fee for the use ofthe land [was] charged; (2) the injuries were intentionally inflicted; or (3) the injuries were**sustaine~** by reason ofaknown dangerous artificial latent condition for which no

1RCW 4.24.210 has been modified since the time ofJewels's accident, butthe provisions relevant to this case are unchanged. See LA

### ws OF 2012, ch. 15, § 1. 6

### Jewels v. City of Bellingham, No. 90319-1 warning signs were posted."

### Davis, 144 Wn.2d at 616 (citing RCW 4.24.210(1), (3)). Only this last exception is at issue in this case. All four elements (known, dangerous, artificial, latent) mustbe present inthe injury-causing condition for liability to attach to the landowner. 

### Davis, 144 Wn.2d at 616. The lack ofpunctuation in the statute betweenthe terms "known dangerous artificial latent condition" has caused conflicting interpretations in the Court of Appeals. RCW 4.24.210(4)(a). For example, in 

### Gaeta, the Court ofAppeals wrote that('[i]r1 (Jrderto**<~onstitute** a 'known' dangerous condition for purposes ofthe recreational use act, the landowner musthave actual as opposedto constructive knowledge that a condition is dangerous." 

### Gaeta v. Seattle CityLight, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989) (citing

### Morgan v. UnitedStates, 709 F.2d 580, 583-84 (9th Cir. 1983)). This analysis would interpret the term "known" as ' . .. . . modi(ying "dangerous," not "condition." Other Court ofAppeals decisions cited this analysis in their opinions as well. 2

. ., , \ ' But in our own analysis interpreting the statutory immunity, we came to a
.· .. ' different conclusion. In 

### Van**Di~zter,** the plaintiffwas playing at a park where there

·'iSee Cultee v. City ofTacoma, 95Wri. App.

## ·sos, Sl7, 977 P.2d 

### is (1999); Ertl v. Parks & Recreation Comm 'n, 76 Wn. App. 110, l lS, 882 P.2d 118S (1994); Tabakv. State, 73 Wn. App: 691, 696, 870 P..2& 1014 (1994). Gaeta and these subsequent cases also all citeMorgan for the rule that a condition is not "known" unless the landowner actually knows that it is dangerous and latent. Butthis is notthe rule from li.1organ. Rather, the Ninth Circuit held only that a lando\vner must have actual knowledge that the condition exists and need not inspect his property to discover.hidden dangers. Morgan, 7.09 F.2d at S83-84. 

### 7Jewels v. City a/Bellingham, No. 90319-1

was a caterpillar·-shaped piece ofplayground equipment. As the plaintiffwas running, he ran into one ofthe antennae that protruded from the caterpillar, injuring his eye. 

### We reje.cted the plaintiffs argument

### th~t the term "latent"

. . modifies ''dangerous,'' suchthat an obvious condition could mask a latent danger. Van Dinter, 121 Wti.2d at 46. Rather, we heldthat all four terms (known, dangerous, artificial, latent) modify "condition," not one another. Van Dinter, 121 ;, \Nn.2d at 46. Ourholding in Van Dinternecessarily rejected the analysis from

. . Gaeta, Cultee, ENZ, and Tabakthat implied any ofthe four terms modified one another. 3**C1llte~** v.**Ci~v** ofTac:oma, 95 

### Wn. App'. 50.5, 977 P.2d 15 (1999); Ertl v. !)arks. & Recreation Comm 'n, 76 ·wn.,App. l 10, .882 P.2d 1185 (1994); Tabak v. State, 73 Wn. App. 691, 870 P.2d 1014 (1994). Van Dinter's reasoning applies equally in this case. Here, the Court of

. ' . . Appeals**conclude~** .that Jewels had failed to showthatthe City knew thatthe**injury~causing condit~on** was dangerous. In other words, it concluded that "known"**~~odifies** "dangerous" within the meaning ofthe recreational use statute. We

3 Cultee, Ertl, and Tabak--all decided after Van Dinter-citeboth the language from Gaetathat implies. ''kr1own" modifies ''dangerous'' and the contradictory rule we announced in Van Dinter--that all four terms modify only "condition." And Gaeta itselfrejected the argument that ''.latent" modified "dangerous," reasoning that "the statute properly interpreted would apply the term 'latent' [only] to the condition." Gaeta, 54 Wn. App. at 610. We disapprove ofthe analysis inthese cases to the extent that they conflict with our holding today and Van Dinterthat all four terms (known, dangerous, artificial, latent) modify only "condition" and not one another. 8Je111els v. City of Bellingham, No. 90319-1 necessarily foreclosed this argument in Van Dinter when we held that "latent" does !1ot modify "dangerous," butrather all four terms modify "condition." There, we

### n~asoned**th~t**

# ifthelegislatt1re had intended ''latenf' to modify "dangerous," it would have

### r~ferred

# to '.'known artificial conditions having latent dangerous aspects.'' VanDinter, 121 Wn.2d at 46. Similarly here, ifthe legislature had intended "known" to modify "dangerous," as the Court ofAppeals reasoned, it would have referred to latent artificial conditions having known dangerous aspects. Butthat is r1ot the language ofthe statute. Rather, the plain language ofthe statutory immunity contains four adjectives (lmown, dangerous, artificial, latent) and only one nounthat**tl10~e** adjectives could modify (condition). Because there is
no punctuation or 

### any other indication to the contrary, the only grammatically logical interpretation is thateach ofthe four adjectives modify the noun independent ofone another. 4Tellingly, the legislature has amended the recreational land use statute since our decision in Van Dinterbuthas left the phrasing and punctuation ofthe statutory immunity undisturbed, thus indicating legislative**approv~l** ofour interpretation ofthe statute. We reaffirm that all four terms modify "condition" and disapprove ofthe Court ofAppeals' decisions to the extentthatthey reason to the contrary. Jewels**--;-----~-----·.-·---------:-H•O**

. '1As

# we noted in. Van Dinte1:., interpreting all four terms to modify "condition" is also consistent with the legislative history. See Van Dinter, 121 Wn.2d at 45 n.2
.

. ' ··.· . . . . 

### 9

### Jewels v. City of Bellingham, No. 90319-1
offered sufficie.ntproofthatthe City knewthe injury-causing condition existed. 5 The statute does not require himto showthatthe City knewthat the condition was dangerous: such a requirement would be contrary to the plain language ofthe statute and ourholdingin 

### Van Dinter. "LATENT" Although we reverse the Court ofAppeals' reasoning in this case, we affirm the trial court's grant ofsummaryjudgment in favor ofthe City because no issue of rriatetial fact exists to showthe condition was latent. Jewels argues to this court that the injury-causing condition, whichhe defines as the "berm," also called the

. . . ' 't. water diverter) was not obvious as a matter oflaw and therefore there is a material issue offact precluding summaryjudgment. In his declaration, Jewels statedthat •the ground appeared to himto be "bare, flat pavement between the curb and speed bump." CP at 92. He also submitted declarations from experts opining how speed bumps are usually ·marked by warnings such as yellowpaint, how speed bumps do not usually span the entire roadway, and how water diverters and other obstructions present hazards to bicycle traffic.

. An**injury~causing** condition is "latent" ifit is "notreadily apparentto the recreational user."**Va~** 

### Dinter, 121 Wn.2d at 45. The condition itself, notthe

5 Both parties agree that "known" under the recreational land use statute means actual knowledge, not constructive knowledge. ' . . . 10

### Jewels v. City of Bellingham, No. 90319-1 danger it poses, must be latent. The dispositive question is whether the condition is readily apparentto the general class ofrecreational users, not whether one user mightfail to discover it. 

### Tennyson v. 

### Plum Creek Timber Co., 73 Wn. App. 550, 

### 555--56, 872P.2d 524 (1994). In other words, what one "particular user sees or does not see is immaterial." 

### Widman v. 

### Johnson, 81 Wn. App. 110, 114-15, 912 P.2d 1095 (1996). This is an objective inquiry. A briefreview ofour cases**;-,~'** illustrates this definition and why there is no material issue offact regarding 

### Iat'eri.cv.in thf

### s

## case. " 

### ,For example, in 

### Gaeta 

### a motorcyclist injured**hin~self**driving over railroad

. tracks owned by the city. Running beside these railroad tracks was a groove

approximately two and a halfinches in width, which allowed the wheels ofa

· ..'."mule'" to r-qn alongside. 

### Gaeta, 54 Wn. App. at 605. The plaintiffdrove on to the

. . . ,. . . , tracks, and when he found these to be slippery, he attempted to cross them. As he vyas. doing so, his wheeljammedinto the mule groove nextto the railroad track, throwing him from his.bike and causing injury. Affirming the dismissal ofthe plaintiffs case, the Court ofAppeals held thatthe injury-causing condition (the mule**groov~** nextto the railroad track) was not latentbecause it was obvious. 

### Gaeta, 54 Wn. App. at 610. In 

### Van Dinter, we held that the injury-causing condition in that case was not latent. First, we defined the injury-causing condition as the proximity ofthe 11

### Jewels v. City ofBellingham, No. 90319-1**('.a~erpUlar-·shaped** playgroundequipment in relation to the grassyarea ofthe park. The.plaintiffargued that he neither sawthe caterpillar, nor did he appreciate the danger that the caterpillar's proximity to grassy area may have posed to him. The**~;ity,** he argued, should have increasedthe border area surroundingthe caterpillar to further separate the caterpillar from the rest ofthe park. We heldthatthe condition
was not latent, expressly approving of

### Gaeta's analysis, writing that it "illustrates**'~t** rthe proper interpretation of'latent' in RCW 4.24.210."6 

### Van Dinter, 121 Wn.2d at 

### 46: We alsorejected the plaintiffs argument there was 

### a factual question for the 

### jury and affirmed 

### summaryjudgment

### in favor ofthe city
.

.In Tennyson, the plaintiffinjured himselfwhile riding his motorcycle off road on land opened for recreational use. The plaintifffell do,wn a sharp drop-off
on the back side

### ofa gravel mound. He had ridden his motorcycle overthe same gravel mound 14 rnonths earlier, whenthe drop offdid not exist. Sincethattime, ,'. ,' : '" the landowner had excavated over one-halfofthe far side ofthe mound. Onthe day ofthe accident, the plaintiffrode up the mound, reached the summit, and

y ••• • ' • • • unexpectedly tumbled. down the excavated side. The Court ofAppeals, applying

. ' . . .**m1~·holdi~gj11** Viin 

### Dinter, heldthatthe.injury-causing condition (the dirt mound, including.the excavated drop-offonthe far side) was not latent. Although it

,. I '



### ----.--------------

. '

- . 6 As noted above, however, we did reject Gaeta's statutory analysis to the extent that it interpreted "known" as modifying "dangerous." '12Jewels v. City of Bellingham, No. 90319-1 recognized thatthe plaintiffdid not, and could not from his vantage point, see the precipitous dropo±I,'the court concludedthat the "excavation was in plainview and readily apparent to .anyone who examinedthe gravel mound as a whole." Te;myson, 73 Wn:·Ap11. 

# at 555-56 (emphasis added}.

, , . Finally,'1n

### ~~winehdrt v. Ctty

# of Spokane, i45 Wn. App. 836, 187 P.3d 345 (2008), the plaintiffwas injured when he went down a large playground slide. At

.,**~~·the** bottom was a containment area filled with wood chip material meantto cushion the landing ofthose exiting the slide. Some ofthis material had become displaced from repeated landings. The plaintiffwent down the slide and landed onthe exposed, hard ground, injuring his spine. The Court ofAppeals accepted the plaintiff's definition ofthe injury-causing condition as insufficiently and improperlymaintained fill material at the bottom ofthe slide. But it concludedthat ' ·.. . . the condition was notlatent: park user.s were able to determine whetherthe wood chips had been displaced by simply looking at the appearance and feel ofthe fnaterial. And most significantly, the plaintiffintroduced a photographtaken at the slide's exit meantto reveal the poor condition ofthe wood chips. As the Court of Appeals aptly noted, this "seemingly acknowledge[s] that the condition ofthe

, ' ' ' . wood chips was visible and obvious atthe time ofthe accident or such a condition could nothave been captured by a photograph. An obvious defect cannotbe

.. latent." Swineharti 145 Wn. App. at 852 (citing Tabak, 73 Wn. App. at 698).

. ' '

. 13Jewels v. City ofBell_ingham, No. 90319-1
From these cases, we derive the following principles on latency: ifan ordinaryrecreational tiser standingnear the injury-causing condition could see 

### it by observation, withoutthe need to uncover ormanipulate the surrounding area, the condition is obvious (not latent) as a matter oflaw. The latency ofthe condition is riot based onthe particular activity the recreational user is engaged in or the particularuser's experience with the area from earlier visits or expertise in the kCspecific recreational activity. Applying these principles, we affirm the trial court's conclusion that no material issue.offact exists re.garding latency in this case. Jewels asserted that the ground appeared to him to be bare and flat. But latency is viewed objectively, and

. . . . what a particular recreational user saw, believed, orthought he saw is immaterial. From our review ofthe photographs in the record, we conclude that any person could**st~nd** near the water diverter and see it. T_his water diverter, which is in
essence a smaller speed bump, approximately two inches in height, is about an inch lowerthanthe speed bump proper. Even ifwe were to define the condition as the speed bump in prox.imity to the cutout and the water diverter, each component of the condition is obvious. Ifeach component ofthe condition is obvious, so isthe condition itself. \Ve note thatthe City was able to walk up to the area and photograph it without any needto unclose oruncover the condition. Like Swinehart, the fact that the condition can be easily photographed is an 14

### Je~els v. City of

### B~llingham, No. 90319-1 acknowledgment thatthe condition is obvious. Although we agree with the trial

. . . ' . cqurtthat bylaterpainting the water diverter the Citymade the condition 

### more qbvious, that does not mean that the condition was latent before. Because no issue ofmaterial fact exists onthe latency element, we affirm the trial court's grant of summaryjudgmentin favor ofthe City. CONCLUSION ffe} For liability to attach to a landowner under Washington's recreational land
use statute, the defendant musthave actual knowledge that the condition 

### exists; the defendant does not need to know thatthe condition is dangerous. The condition must also objectively be dangerous, artificial, and latent All four elements in RCW 4.2A.210(4)(a) modify the term "condition," not one another. In this case, there is
no dispute thatthe City hadknowledge ofthe injury-causing condition and that the ' ' ' condition was artificial. However, because there is no issue ofmaterial fact as to whetherthe condition was latent, we affirm summaryjudgmentin favor ofthe City

15

### Jewels v. City of Bellingham, No. 90319-1
and reverse the opinion ofthe Court ofAppeals.

WE CONCUR:

16

### Jeivels v. City of Bellingham, 

### No. 90319-1 · (Gordon McCloud, J., 

### dissenting)

No. 90319-1 GORDON McCLOUD (dissenting)-! agree with much of the majority_ opinion. I agree that the adjectives in the recreational land use statute ("known," "dangerous," "artificial," and "latent"), RCW 4.24.210, modifythe term "condition" and not one another. Majority at 2. And I agree with much ofwhat the majority says about the issue oflatency. I disagree with the majority's ultimate holding, however, because it depends
on a definition of the "general class ofrecreational users" that is too restrictive. Majority at 11. I therefore conclude that Steven Jewels has created a genuine issue ofmaterial fact as to latency. I also conclude that he has created a genuine issue of material fact as to dangerousness. Accordingly, I would reverse the Court of Appeals. ANALYSIS An injury-causing condition is "latent" for purposes ofthe recreational use statute ifit is "not readily apparent to the recreational user." Van Dinter v. City of 1

### · Jewels v. City of Bellingham, No. 90319-1 · (Gordon McCloud, J., dissenting)


### Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993). The majority is correct that this is an objective inquiry; a condition is not latent merely because the plaintiff didn't see it or failed to appreciate its dangerousness. 

### Id. at 45-46; majority at 11. Instead, as the majority correctly notes, "The dispositive question is whether the condition is readily apparentto the

### generalclass of recreational users." Majority at 11 (emphasis added); 

### Ravenscroftv. Wash. Water Power Co., 136 Wn.2d 911, 924, 969 P.2d 75 (1998). The majority, however, uses an overly restrictive definition ofthe "general class of recreational users." Majority at 11. The majority limits this class to "ordinaryrecreational user[s] 

### standingnear the injury-causing condition." Id. at 14 (emphasis added). It 

### thereby excludes bicyclists like Jewels from the class of recreational users whose perspective matters to the latency inquiry. In my view, this conflicts with our precedent on the recreational land use statute. In

### Ravenscroft,theplaintiffwas injuredwhileriding in aboatonLongLake. 136 Wn.2d at 916. The boat struck some submerged tree stumps, and the impact caused the motor to flip up into the boat and strike the plaintiff. 

### Id. at 915. This court held that a jury could find the submerged stumps were latent because the evidence showed that (1) the pilot ofthe plaintiff's boat failed to see the stumps and (2) other boaters had also hitthe stumps. 

### Id. at 925. 2

### , Jewels v. City of Bellingham, No. 903'19-l · 

### (Gordon McCloud, J., dissenting)
Of significance to this case, the 

### Ravenscroft court did not ask whether the stumps wouldhave beenreadily apparentto someone swimmingnearthem. Instead,
our decision relies on the assumption that the plaintiff-a boater-fell within the general class ofLong Lake's recreational users. 1 

### Similarly, there can be no question here that Jewels falls within the general class ofrecreational users who visit Cornwall Parle He was injured while riding a bicycle through the park on the right side ofthe public road, just as traffic laws dictate he must. 

### See RCW 46.61.770(1) ("Every person operating a bicycle upon a roadway at a rate ofspeed less than the normal flow oftraffic at the particular time and place shall ride as near to the right side ofthe right through lane as is safe."). No evidence suggests that he was riding at an unusual speed or in an otherwise unusual manner. Because I believe that Jewels falls within the general class of recreational users, I also disagree with the majority's assertion that Jewels' perception is "immaterial" to the latency determination. Majority at 14. Contrary to the majority's implication, Jewels does not arguethatthe waterdiverterwas latent solely

1 To the extent that this conflicts with the reasoning in Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 872 P.2d 524 (1994), on which the majority relies, I would adhere to this court's precedent. 3

### · Jewels v. City of Bellingham, 

### No. 903.19-1 · (Gordon McCloud, J., 

### dissenting)
from his unique perspective. See id. 

### ("what a particular recreational user saw, believed, orthoughthe sawis immaterial"). Instead,he arguesthatthe waterdiverter
was latent from the perspective ofbicyclists in general. 2 

### To be sure, Jewels does provide his own declaration that although he looked at the ground where he intended to ride around the second speed bump, that ground appeared to be "bare, flat pavement between the curb and speed bump." Clerk's Papers (CP) at 92. But that statement is more than an assertion about what Jewels, in particular, saw. It 

### is also evidence that the unpainted water diverter was not readily apparentto bicyclists in general. More importantly, Jewels' statement is supported by the photographs that the city ofBellingham (City) submitted. Despitethe City's characterization ofthe water diverter as "black" and therefore readily distinguishable from the gray concrete surrounding it, CP at 16-17, the photographs depict the unpainted asphalt as only slightly darker than the surrounding concrete. Based on this objective evidence, a

2This distinguishes Jewels' case from both Van Dinter, 121 Wn.2d at 45, and Gaeta v. Seattle City Light, 54 Wn. App. 603, 610-11, 774 P.2d 1255 (1989), on which the majority relies for its holding on latency. See majority at 11-12. In both Van Dinter and Gaeta, the plaintiffs argued that apatent injury-causing condition posed a latent danger. Van Dinter, 121 Wn.2d at 45; Gaeta, 54 Wn. App. at 610. Both courts held that the recreational land use statute bars reliefin that circumstance because the term "latent" in the statute modifies "condition" and not "danger." Van Dinter, 121 Wn.2d at 45; Gaeta, 54 Wn. App. at 610. 4

### Jewels v. City of Bellingham, No. 90319-1 (Gordon McCloud, 

### J., dissenting) jurycould reasonably find that the asphalt water diverter (and thus its proximity to the curb cutout) was not "readilyapparent" to the averagerecreationalbicyclist. 

### Van Dinter, 121 Wn.2d at 45.3 

### For those reasons, I would hold that the City is not entitled to summary judgment on the question oflatency. I would also hold that the City is not entitled to summaryjudgment on the question ofdangerousness. This court has not interpreted the term "dangerous" in the recreational use statute, but the Court ofAppeals has held that a "dangerous" condition is one "that poses an unreasonable risk ofharm." 

### Gaeta v. Seattle City Light, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989) (citing WILLIAM 

### L. PROSSER, HANDBOOK ON THE LAW

### OF TORTS§ 31 (4th ed. 1971)); 

### Cultee v. City ofTacoma, 95 Wn. App. 505, 518, 977 P.2d 15 (1999).

3 This distinguishes Jewels' case from Swinehartv. City of Spokane, 145 Wn. App. 836, 187 P.3d 345 (2008), on which the majority relies. See majority at 13-14. In Swinehart, the plaintiffs submitted photographs showing the alleged injury-causing condition: the displacement ofcushioning wood chips beneath a city park slide. 145 Wn. App. at 852. They then argued that '"[t]hephotographs
... reveal[ed] apoorlymaintained surface at the slide exit[,] and no reasonable juror could refute this evidence."' Id. (emphasis added) (first alterationinoriginal). In otherwords, theplaintiffs argued thatthe injury-causing conditionwas readilyapparentfrom thephotographs. The CourtofAppeals held that the plaintiffs thereby "seemingly acknowledge that the condition ofthe wood chips was visible and obvious at the time ofthe accident." Id. In this case, Jewels does not argue that the photographs prove the existence ofthe injury-causing condition; rather, he argues that they reveal the condition's latency. 5

### ·Jewels v. City of Bellingham, No. 903.19-1 

### (Gordon McCloud, J., 

### dissenting)

In support ofhis argument that the water diverter between the speed bump and the cutout was dangerous, Jewels offered a declaration of Jim Couch (a professional bicyclist) and a report by Edward Stevens (an engineer). The Couch declaration stated that Couch has "ridden all over the state ofWashington through [his] many years as a competitive and recreational cyclist, and as a group ride leader," and that in his opinion "[s]peed bumps are usually marked by warnings on the roadway such as yellow paint
... to give people notice [and] most ... do not take up the entire roadway." CP at 108. 

### Citing a study from San Jose, California, Stevens reported that obstructions like the water diverter-"abrupt
... [bJumps," as opposed to "gradual
. . . humps"-have been shown to be "particularly extra hazardous for bicycle traffic." CP at 80-81. 

### Stevens also opined that "[t]he City of Bellingham installed an extra hazardous drainage feature across the Cornwall Park Road[, which] was known to cause loss ofcontrol for bicycles, light motorcycles, and was also recognized by the industry to cause operational problems for emergency vehicles." CP at 81. 

### The City argues that Stevens' report is inadmissible because it is unsworn. The City is correct that the report was not attached to a declaration, by Stevens, attesting to the truth ofits contents. And it is true that unauthenticated evidence is inadmissible in opposition of summary judgment. SentinelC3, Inc. v. Hunt, 181 6

### ·Jewels v. City of Bellingham, No. 903.19-1 (Gordon McCloud, J., dissenting)

Wn.2d 127, 141, 331 P.3d 40 (2014). Butthe City did not object to the admission ofStevens' report on that basis in the trial court. Instead, it objected that the report
was irrelevant because it was "based on the alleged standards for speed bumps in a city street [, while]
... the alleged accident occurred on a park access road which is not a platted, designed City ofBellingham street." CP at 117. Because the City did notobjectthatthereportwasunswom,Jewels was affordedno opportunityto correct the error. Iwouldtherefore declineto address this unpreservederrornow. 

### See Rules ofAppellate Procedure (RAP) 2.5. The City also argues that Couch's declaration is inadmissible under Rules of Evidence (ER) 702 because "itoffers testimony on areas outside [Couch's] expertise (parkconstruction) and speculates onwhyPlaintiffmade certain decisions." City of Bellingham's Suppl. Br. at 20. This, however, is not an accurate characterization. In his declaration, Couch states that "[s]peed bumps are usually marked by warnings on the roadway such as yellow paint and/or through signage to give people notice." CP at 108. The basis for that observation is Couch's 30 years "in bicycle riding and coaching," CP at 107-experience sufficient to qualify him as an expert in the kinds ofspeed bumps that bicyclists typically encounter. 

### See ER 702 (witness may be "qualified as an expertby
... experience"). Couch also opinedthat "itwas reasonable for Mr. Jewels 7

### · Jewels v. City of Bellingham, No. 903.19-1 · (Gordon McCloud, J., dissenting)

to believe that [the site ofthe accident] was a typical speedbump, particularly when the first speed bump he came to in the park fit that common pattern." CP at 109. This was not, as the City asserts, "speculat[ion]" about Jewels' decision to ride over the water diverter. City ofBellingham's Suppl. Br. at 20. Rather, itwas an opinion about whatbicyclists generally do and expect. As such, it was admissible under ER 702. 

### See State v. Francisco, 148 Wn. App. 168, 177, 199 P.3d478 (2009) (detective allowed to testify, as expert, that "drug users generally do not give away drugs"). Thetrial courtcorrectly admittedboth Stevens' and Couch's experttestimony. Thattestimony is sufficient to create a genuine issue ofmaterial fact as to whether the waterdiverterinproximityto the curb cutoutposedanunreasonableriskofharm. Thus, I would hold that the City is not entitledto summaryjudgment onthe issue of dangerousness. CONCLUSION The majority is correct that a plaintiff contesting recreational land use immunity need not show that the defendant knew the injury-causing condition was dangerous and latent. But the majority errs by limiting the class of general recreational users to those standing near the injury-causing condition.

8

### , Jewels v. City of Bellingham, 

### No. 903°19-1 (Gordon McCloud, J., 

### dissenting) Applying a broader definition ofthis general class, I conclude that Jewels has created genuine issues offact as to latency and dangerousness. I would therefore
reverse the Court ofAppeals and remand to the trial court.

9

### ·Jewels v. City of Bellingham, No. 903.19-1 

### (Gordon McCloud, J., 

### dissenting)

10