Fll'E 

' / IN CLERKS OFFICE """ 

....-.: COURT, aTATE OF WASI llNGTCN 

DATE JUN 1 1 2015 

~iJZ IN THE SUPREME COURT OF THE STATE OF WASHING TON 

STEVEN JEWELS, ) 

) No.90319-1 

Petitioner, ) 

) 

v. ) En Banc 

) 

CITY OF BELLINGHAM, ) 

) 

Respondent. ) JUN 1 1 2015 ) Filed 

JOHNSON, J.--This case involves statutory interpretation of Washington's 

recreational land use statute, RCW 4.24.210. The plaintiff in this case sued the city 

of Bellingham for negligence following an injury he sustained when he was thrown 

from his bicycle aner hitting an obstacle in a city-maintained park. Under the 

statute, landowners who open their property for recreational use free of charge are 

immune from liability when visitors injure themselves. This statutory immunity 

does not apply, however, "for injuries sustained to users by reason of a 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 summary judgment, and the Court of Appeals 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 again today, the adjectives "known," "dangerous," "artificial," and . . 

"latent" each modify the term "condition," not one another. We hold that the Court 

of Appeals erroneously interpreted the statute by concluding that the plaintiff must 

show the city of Bellingham knew the condition was dangerous. However, our 

review of the record supports the trial court's conclusion that the condition in this 

case was obvious--that is, not latent. We affirm summary judgment in favor of the 

city of Bellingham. 

FACTS 

Steven Jewels was injured in a bicycle accident while riding in Cornwall 

Park, which the city of Bellingham (City) maintains. Jewels rode over a speed 

bump that caused a jolt to his bicycle. As he approached a second speed bump, he 

attempted to ride around it in order to avoid another jolt. Both speed bumps were 

painted bright yellow and did not span the entire width of the pathway: there was 

an unpainted section between the speed bump and the adjacent curb. In his 

declaration, Jewels asserted that the area between the 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 between the second speed bump and the adjacent righthand curb. This "water diverter" berm channels water off of the pathway and into a 

cutout in the right-hand curb. The water diverter is approximately two inches high. 

2 
Jewels 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 it under Washington's recreational land use statute and moved for 

summary judgment. Jewels countered, arguing that his claim fell within the 

statutory exception for injuries caused by "a known dangerous artificial latent 

condition." RCW 4.24.210(4)(a). He argued that the City knew about the water 

diverter (~aving installed it) and that the water diverter was dangerous, man made, 

and difficult to see. Jewels introduced declarations from himself and other 

bicycling experts in support of his argument that areas next to speed bumps are 

usually flat. The City introduced several photographs of the 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 summary judgment in favor of the City. It ruled that 

Jewels had failed to establish a material issue of fact that the water diverter was 

latent: 

' . ' . ' 

. I agree that when it wasn't painted, it wasn't as obvious as the 

yellow speed bump. Nonetheless, it is two or two and a half inches 

high apparently. It was within view. Mr. Jewels was - it's not 

something that he couldn't have seen had he looked, and that is really 

the standard under this statute. If you can see it, you know it, you 

should be aware of it. 

And so I think that despite Mr. Jewels' unfortunate 

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

side of the, of the speed bump might very well be a good assumption, 

and rm not striking the expert opinion, so you know, if they indicate, 

one of them indicate that is what bicyclists commonly do, and I don't 

see that as being a problem, but I do think that this bump even if not 

' painted was large eriough and wide enough that it was clearly obvious 

and clearly visible. So it is not a latent condition. 

Verbatim Report of 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 known that it was 

dangerous.'' VRP at 19. The trial court denied Jewels's motion for reconsideration, 

confirming its conclusion that the condition was not latent and that the 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 of the Court of 

Appeals reasoned that.in order to establish a "known condition" under the 

recreational use statute, a plaintiff must show that the defendant "also lmew that 

[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 of Appeals did not reach the issue of whether the condition 

was latent. In diss'ent, Judge Becker argued that the plaintiff must show only that 

the City knew the injury-causing condition exists in order to overcome the 

statutory immunity, not that the City lmew 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 of law, which we review de novo. State . .· . . 

V.· A~mendariz, 160 V\Tn.2d 106, 110, 156 P.3d 201 (2007). Our starting point is 

al~ays the s~atute's plain language and ordinary meaning. If the language is 

urnunbiguous, our review is at an end. But if the language is open to more than one 

reasonable interpretation, we may apply our recognized canons of statutory 

construction to arrive at the legislature's intent. State v. J.P., 149 Wn.2d 444, 450, 

69 P.3d 318 (2003). ' ,' 

' ' 

5 
1le1vels v. City of Bellingham, No. 90319-1 

ANALYSIS 

Washington'·s recreational land use statute aims to encourage landowners to 

open their lands to the public by modifying the common law duty owed to invitees, 

licensees, and trespassers. Davis v. State, 144 Wn.2d 612, 615-16, 30 P.3d 460 

(2001}. In relevant part, the statute reads: 

(1) Except as otherwise provided in subsection (3) or ( 4) of this 

section, any public or private landowners ... who allow members of 

the public to use them for the purposes of outdoor recreation ... 

without charging a fee of any kind therefor, shall not be liable for 

unintentional injuries to such users. 

( 4)(a) Nothing in this section shall prevent the 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. 

RCW 4.24.210. 1 

In short, landowners who open their land to the public for recreational ' ' 

purposes, free of charge,_ 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 of the land [was] 

charged; (2) the injuries were intentionally inflicted; or (3) the injuries were 

sustaine~ by reason ofa known dangerous artificial latent condition for which no 

1 RCW 4.24.210 has been modified since the time of Jewels's accident, but the 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) must be present in the injury-causing condition for 

liability to attach to the landowner. Davis, 144 Wn.2d at 616. 

The lack of punctuation in the statute between the 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 of Appeals wrote 

that('[i]r1 (Jrderto <~onstitute a 'known' dangerous condition for purposes of the 

recreational use act, the landowner must have actual as opposed to constructive 

knowledge that a condition is dangerous." Gaeta v. Seattle City Light, 54 Wn. App. 

603, 609, 774 P.2d 1255 (1989) (citing Morgan v. United States, 709 F.2d 580, 

583-84 (9th Cir. 1983)). This analysis would interpret the term "known" as ' . .. . . 

modi(ying "dangerous," not "condition." Other Court of Appeals 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 plaintiff was playing at a park where there 

· 'iSee Cultee v. City of Tacoma, 95 Wri. App. ·sos, Sl 7, 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 cite Morgan for 

the rule that a condition is not "known" unless the landowner actually knows that it is dangerous 

and latent. But this is not the 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. 

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

was a caterpillar·-shaped piece of playground equipment. As the plaintiff was 

running, he ran into one of the antennae that protruded from the caterpillar, 

injuring his eye. We reje.cted the plaintiffs argument th~t the term "latent" 

. . 

modifies ''dangerous,'' such that an obvious condition could mask a latent danger. 

Van Dinter, 121 Wti.2d at 46. Rather, we held that all four terms (known, 

dangerous, artificial, latent) modify "condition," not one another. Van Dinter, 121 

;, \Nn.2d at 46. Our holding in Van Dinter necessarily rejected the analysis from 

. . 

Gaeta, Cul tee, ENZ, and Tabak that implied any of the 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 show that the City knew that the 

injury~causing condit~on was dangerous. In other words, it concluded that "known" 

~~odifies "dangerous" within the meaning of the recreational use statute. We 

3 Cultee, Ertl, and Tabak--all decided after Van Dinter-cite both the language from 

Gaeta that implies. ''kr1own" modifies ''dangerous'' and the contradictory rule we announced in 

Van Dinter--that all four terms modify only "condition." And Gaeta itself rejected 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 of the 

analysis in these 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. 

8 
Je111els v. City of Bellingham, No. 90319-1 

necessarily foreclosed this argument in Van Dinter when we held that "latent" does 

!1ot modify "dangerous," but rather all four terms modify "condition." There, we 

n~asoned th~t if the legislatt1re had intended ''latenf' to modify "dangerous," it 

would have r~ferred to '.'known artificial conditions having latent dangerous 

aspects.'' Van Dinter, 121 Wn.2d at 46. Similarly here, ifthe legislature had 

intended "known" to modify "dangerous," as the Court of Appeals reasoned, it 

would have referred to latent artificial conditions having known dangerous aspects. 

But that is r1ot the language of the statute. Rather, the plain language of the 

statutory immunity contains four adjectives (lmown, dangerous, artificial, latent) 

and only one noun that 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 of the four adjectives modify the noun 

independent of one another.4 Tellingly, the legislature has amended the recreational 

land use statute since our decision in Van Dinter but has left the phrasing and 

punctuation of the statutory immunity undisturbed, thus indicating legislative 

approv~l of our interpretation of the statute. 

We reaffirm that all four terms modify "condition" and disapprove of the 

Court of Appeals' decisions to the extent that they reason to the contrary. Jewels 

--;-----~-----·.-·---------:-H•O 

. '

1 As 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.ntproof that the City knew the injury-causing condition existed.5 

The statute does not require him to show that the City knew that the condition was 

dangerous: such a requirement would be contrary to the plain language of the 

statute and our holding in Van Dinter. 

"LATENT" 

Although we reverse the Court of Appeals' reasoning in this case, we affirm 

the trial court's grant of summary judgment in favor of the City because no issue of 

rriatetial fact exists to show the condition was latent. Jewels argues to this court 

that the injury-causing condition, which he defines as the "berm," also called the . . . ' 't. 

water diverter) was not obvious as a matter of law and therefore there is a material 

issue of fact precluding summary judgment. In his declaration, Jewels stated that 

•the ground appeared to him to 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 yellow paint, 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" if it is "not readily apparent to the 

recreational user." Va~ Dinter, 121 Wn.2d at 45. The condition itself, not the 

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 apparent to the general class of recreational users, not whether one user 

might fail 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 brief review of our cases 

;-,~' illustrates this definition and why there is no material issue of fact 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 half inches in width, which allowed the wheels of a 

· .. '."mule'" to r-qn alongside. Gaeta, 54 Wn. App. at 605. The plaintiff drove on to the . . . ,. . . , 

tracks, and when he found these to be slippery, he attempted to cross them. As he 

vyas. doing so, his wheel jammed into the mule groove next to the railroad track, 

throwing him from his.bike and causing injury. Affirming the dismissal of the 

plaintiffs case, the Court of Appeals held that the injury-causing condition (the 

mule groov~ next to the railroad track) was not latent because 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 of the 

11 
Jewels v. City ofBellingham, No. 90319-1 

('.a~erpUlar-·shaped playground equipment in relation to the grassyarea of the park. 

The. plaintiff argued that he neither saw the 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 increased the border area surrounding the caterpillar to 

further separate the caterpillar from the rest of the park. We held that the 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 also rejected the plaintiffs argument there was a factual question for the 

jury and affirmed summary judgment in favor of the city . 

. In Tennyson, the plaintiff injured himselfwhile riding his motorcycle off 

road on land opened for recreational use. The plaintiff fell do,wn a sharp drop-off 

on the back side of a gravel mound. He had ridden his motorcycle over the same 

gravel mound 14 rnonths earlier, when the drop off did not exist. Since that time, ,'. ,' : '" 

the landowner had excavated over one-half of the far side of the mound. On the 

day of the accident, the plaintiff rode up the mound, reached the summit, and y ••• • ' • • • 

unexpectedly tumbled. down the excavated side. The Court of Appeals, applying . ' . . . 

m1~·holdi~gj11 Viin Dinter, held that the.injury-causing condition (the dirt mound, 

including .the excavated drop-off on the 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." 

'12 
Jewels v. City of Bellingham, No. 90319-1 

recognized that the plaintiff did not, and could not from his vantage point, see the 

precipitous drop o±I,'the court concluded that the "excavation was in plain view 

and readily apparent to .anyone who examined the 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 plaintiff was injured when he went down a large playground slide. At 

., ~~·the bottom was a containment area filled with wood chip material meant to cushion 

the landing of those exiting the slide. Some of this material had become displaced 

from repeated landings. The plaintiff went down the slide and landed on the 

exposed, hard ground, injuring his spine. The Court of Appeals accepted the 

plaintiff's definition of the injury-causing condition as insufficiently and 

improperly maintained fill material at the bottom of the slide. But it concluded that ' ·.. . . 

the condition was notlatent: park user.s were able to determine whether the wood 

chips had been displaced by simply looking at the appearance and feel of the 

fnaterial. And most significantly, the plaintiff introduced a photograph taken at the 

slide's exit meant to reveal the poor condition of the wood chips. As the Court of 

Appeals aptly noted, this "seemingly acknowledge[s] that the condition of the , ' ' ' . 

wood chips was visible and obvious at the time of the accident or such a condition 

could not have been captured by a photograph. An obvious defect cannot be .. 

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

13 
Jewels v. City ofBell_ingham, No. 90319-1 

From these cases, we derive the following principles on latency: if an 

ordinary recreational tiser standing near the injury-causing condition could see it 

by observation, without the need to uncover or manipulate the surrounding area, 

the condition is obvious (not latent) as a matter of law. The latency of the condition 

is riot based on the particular activity the recreational user is engaged in or the 

particular user's experience with the area from earlier visits or expertise in the 

kC specific recreational activity. 

Applying these principles, we affirm the trial court's conclusion that no 

material issue. of fact 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, or thought he saw is immaterial. 

From our review of the 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 

lowerthan the speed bump proper. Even if we 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. If each component of the condition is obvious, so is the 

condition itself. \Ve note that the City was able to walk up to the area and 

photograph it without any need to unclose or uncover 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 that the condition is obvious. Although we agree with the trial . . . ' . 

cqurt that by later painting the water diverter the City made the condition more 

qbvious, that does not mean that the condition was latent before. Because no issue 

of material fact exists on the latency element, we affirm the trial court's grant of 

summary judgment in favor of the City. 

CONCLUSION 

ffe} For liability to attach to a landowner under Washington's recreational land 

use statute, the defendant must have actual knowledge that the condition exists; the 

defendant does not need to know that the 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 that the City had knowledge of the injury-causing condition and that the ' ' ' 

condition was artificial. However, because there is no issue of material fact as to 

whether the condition was latent, we affirm summary judgment in favor of the City 

15 
Jewels v. City of Bellingham, No. 90319-1 

and reverse the opinion of the Court of Appeals. 

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, modify the term "condition" 

and not one another. Majority at 2. And I agree with much of what the majority 

says about the issue of latency. 

I disagree with the majority's ultimate holding, however, because it depends 

on a definition of the "general class of recreational users" that is too restrictive. 

Majority at 11. I therefore conclude that Steven Jewels has created a genuine issue 

of material 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 of the recreational use 

statute if it 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 apparent to the general class of recreational users." Majority at 

11 (emphasis added); Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 924, 

969 P.2d 75 (1998). 

The majority, however, uses an overly restrictive definition of the "general 

class of recreational users." Majority at 11. The majority limits this class to 

"ordinary recreational user[s] standing near 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, the plaintiff was injured while riding in a boat on Long Lake. 

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 of the plaintiff's boat failed to see the stumps and 

(2) other boaters had also hit the 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 would have been readily apparent to someone swimming near them. Instead, 

our decision relies on the assumption that the plaintiff-a boater-fell within the 

general class of Long Lake's recreational users. 1 

Similarly, there can be no question here that Jewels falls within the general 

class of recreational users who visit Cornwall Parle He was injured while riding a 

bicycle through the park on the right side of the 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 of speed less than the normal flow of traffic at the particular time 

and place shall ride as near to the right side of the 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 argue that the water diverter was 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, or thought he saw is immaterial"). Instead, he argues that the water diverter 

was latent from the perspective of bicyclists 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 apparent to bicyclists in general. 

More importantly, Jewels' statement is supported by the photographs that the 

city of Bellingham (City) submitted. Despite the City's characterization of the water 

diverter as "black" and therefore readily distinguishable from the gray concrete 

surrounding it, CP at 16-1 7, the photographs depict the unpainted asphalt as only 

slightly darker than the surrounding concrete. Based on this objective evidence, a 

2 This 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 a patent 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 relief in 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) 

jury could reasonably find that the asphalt water diverter (and thus its proximity to 

the curb cutout) was not "readily apparent" to the average recreational bicyclist. 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 of latency. 

I would also hold that the City is not entitled to summary judgment on the 

question of dangerousness. This court has not interpreted the term "dangerous" in 

the recreational use statute, but the Court of Appeals has held that a "dangerous" 

condition is one "that poses an unreasonable risk of harm." 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 of Tacoma, 

95 Wn. App. 505, 518, 977 P.2d 15 (1999). 

3 This distinguishes Jewels' case from Swinehart v. 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 of cushioning wood chips beneath a city park slide. 145 Wn. 

App. at 852. They then argued that '"[t]he photographs ... reveal[ed] a poorly maintained 

surface at the slide exit[,] and no reasonable juror could refute this evidence."' Id. 

(emphasis added) (first alteration in original). In other words, the plaintiffs argued that the 

injury-causing condition was readily apparent from the photographs. The Court of Appeals 

held that the plaintiffs thereby "seemingly acknowledge that the condition of the wood 

chips was visible and obvious at the time of the accident." Id. In this case, Jewels does 

not argue that the photographs prove the existence of the 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 of his 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 of Washington 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 ... [b Jumps," 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 of control 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 of its 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). But the City did not object to the admission 

of Stevens' 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 of Bellingham street." CP at 11 7. Because the City did 

not object that the report was unswom, Jewels was afforded no opportunity to correct 

the error. I would therefore decline to address this unpreserved error now. See Rules 

of Appellate Procedure (RAP) 2.5. 

The City also argues that Couch's declaration is inadmissible under Rules of 

Evidence (ER) 702 because "it offers testimony on areas outside [Couch's] expertise 

(park construction) and speculates on why Plaintiff made 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 of speed bumps 

that bicyclists typically encounter. See ER 702 (witness may be "qualified as an 

expert by ... experience"). Couch also opined that "it was reasonable for Mr. Jewels 

7 
· Jewels v. City of Bellingham, No. 903.19-1 · 

(Gordon McCloud, J., dissenting) 

to believe that [the site of the accident] was a typical speed bump, 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 of Bellingham's Suppl. Br. at 20. Rather, it was an opinion 

about what bicyclists generally do and expect. As such, it was admissible under ER 

702. See State v. Francisco, 148 Wn. App. 168, 177, 199 P.3d 478 (2009) (detective 

allowed to testify, as expert, that "drug users generally do not give away drugs"). 

The trial court correctly admitted both Stevens' and Couch's expert testimony. 

That testimony is sufficient to create a genuine issue of material fact as to whether 

the water diverter in proximity to the curb cutout posed an unreasonable risk of harm. 

Thus, I would hold that the City is not entitled to summary judgment on the 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 of this general class, I conclude that Jewels has 

created genuine issues of fact as to latency and dangerousness. I would therefore 

reverse the Court of Appeals and remand to the trial court. 

9 
·Jewels v. City of Bellingham, No. 903.19-1 

(Gordon McCloud, J., dissenting) 

10