Supreme Court Upholds Washington's Strong Recreational Immunity Law
It’s not often my recreational and professional worlds collide. As much as I’d love to be paid to drive around the country riding trails and posting “sick edits,” there’s one critical barrier: I can’t ride like Jeff Kendall-Weed. I probably can’t even ride like Jeff Kendall-Weed on weed. So, I have a job as an environmental lawyer so I can eat, have a family, ride, and make “lame edits.” So sick, bro.
Anyway, since my earliest days studying law, I’ve been a student of Washington’s “recreational use immunity” statute, RCW 4.24.210. I wrote an article on rec. immunity in law school, and then got to work on real-world rec. use issues as a law clerk to the AGO’s Fish Wildlife and Parks division. On the advocacy side, I've had occasion to discuss rec. immunity issues with land managers as they began including or expanding mountain bike opportunities, and testified before the Legislature the last time the statute was up for a tweak. I’ve religiously kept tabs on rec. use case law, both in Washington and nationally, and keep threatening to write another article, this time arguing that the legislature should extend the protection to non-profit volunteer groups that build recreational trails. I am, in short, a recreational use immunity nerd. Admitting I have a problem is the first step to recovery, right?
With that background, then, you can imagine my joy that today was among those rare, awesome moments when “bike nerd” gets to collide with “law nerd.” In a unanimous decision, the Washington Supreme Court in Lockner v. Pierce County reversed a troubling Court of Appeals decision from last year on recreational immunity that would have severely handicapped the law (pretty much all the state-wide recreation groups, including Evergreen, joined in on a "friend of the court" brief urging reversal). In reversing the appeals court, the high court affirmed what I’ve believed for years: Washington State has one of the strongest recreational use immunity statutes in the country. We’re talking near-Canadian levels of protection here. Pass the Kokanee, ya hosers.
So, first, what is recreational use immunity, and why should you care? In the simplest terms, recreational use immunity is one example of the much bandied-about term “tort reform.” It bars lawsuits against a landowner from individuals who are hurt while recreating on land the landowner has opened to the public for free recreational access. It is, therefore, expressly designed as an incentive for public and private landowners to open up their land to us gratis. Free. Of. Charge.
And, critically, as confirmed by the Court today, the protection applies regardless of whether the land in question is used solely for recreation or whether the land serves some other separate purpose (commercial or otherwise), like timber harvest. The import of this cannot be overstated given that the vast majority of mountain biking in Washington—and I mean nearly all of it—occurs on private, state, or federal timber lands. The Court also confirmed that the immunity applies to bar suits based both on premises liability (i.e., the condition of property) or the landowner’s negligent acts (actions by the landowner or her employees/agents/etc.). So, for example, the defendant in Lockner was injured when a groundskeeper on a mower caused a gust of dirt and debris to fly her way as she was riding by. Even had the groundskeeper’s failure to see the biker or the mound of dirt that caused the cloud been negligent, the plaintiff’s claim was barred.
When doesn’t the immunity apply? Not many situations. Well, first, the recreational use has to be free. Landowners who charge for access, like Green Diamond and others, do not get the immunity. Other than that and a few minor exceptions, the immunity only does not apply where a known, dangerous, artificial, and latent condition causes the injury, unless a sign warning of the condition is conspicuously posted. What’s a “known, dangerous, artificial, latent” condition? That’s a bit of a fact-specific inquiry, but in Washington it is a high, HIGH bar for plaintiffs to meet. In a nutshell, the cases interpreting this language basically embody the “look before you leap” maxim. If you can see it, it’s not “latent,” even if the danger it poses can’t be seen. Let me say that again. If you can stop, get off your bike, and look at the trail feature you’re about to remove yourself from the gene pool on, your lawsuit is toast. When’s the last time you ran across a magically invisible rock, root, bridge, jump, berm, drop, teeter, etc? Stop thinking about it, the answer is: “never.” Nope. Not that. Not that either. “Never.”
In fact, two of the seminal Washington court cases interpreting this language have involved recreational users on two wheels, a motorcycle rider in one case and a cyclist in another; in both cases, the plaintiffs’ suits were held to be barred despite the fact that the conditions causing their injuries were not apparent given the angle at which plaintiffs approached. This includes a poor moto rider that rode off a dirt jump one day, then returned the next only to find out, in mid-air, that the landing had been excavated by the landowner. Huck to splat. Given the existing case law, it is hard to imagine any feature a mountain biker might encounter on the trails that would fall under each prong of the exception. Unexploded land mines? Robotic Sasquatch attack? (remember, has to be “artificial” too, so regular Sasquatch attack is okay)
This is not to downplay folks who are hurt recreating. Some of the plaintiffs involved in these suits suffered severe injuries, including the moto rider mentioned above. But, RCW 4.24.210 is a critical policy decision that incentivizes personal responsibility and recreational expansion, two things that are hard to deny as being in short supply. As a result, it deserves our wholehearted support and expansion as recreationalists.
So, first of all, be careful out there. Cycling, especially mountain biking, is a dangerous sport. Know the limits of your abilities and equipment, always stay aware of your surroundings, look before you leap. But, critically important for all of us and the continued development of Washington as a premiere mountain biking location, if you do get hurt don’t bother suing the land owner. You’re gonna have a rough day in court. Tough knobbies. Bye, Felicia.
Oh, and because I’m a lawyer, here’s some free legalese for you. DISCLAIMER: the above constitutes the opinion of the author as a recreational advocate and should not be construed as legal advice. Furthermore, the statements contained above are solely those of the author and do not constitute any official position, policy, or statement by the author’s employer. Void where prohibited. Some restrictions apply. Batteries not included.