Opinion
No. 56310-6-I.
October 2, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-2-15539-0, Michael Hayden, J., entered April 29, 2005.
Counsel for Appellant(s), Bryan Patrick Coluccio, Cable Langenbach Kinerk Bauer LLP, 1000 2nd Ave Ste 3500, Seattle, WA, 98104-1063.
Counsel for Respondent(s), Eric Andrew Mentzer, Attorney General of Washington, Po Box 40126, Olympia, WA, 98504-0126.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Appelwick, C.J., and Becker, J.
Maia Syfers was injured while sledding on land owned by the State and open to recreational users. She commenced a personal injury lawsuit, alleging that the State had failed to post warning of a known, dangerous, artificial, latent condition. Syfers's husband Dennis Lambert sued for loss of consortium. The State moved for summary judgment, which the trial court granted. We affirm.
FACTS
Dennis Lambert and Maia Syfers, husband and wife, went to a sledding hill in Iron Horse State Park, near Snoqualmie Pass, on January 29, 2000, with a group of adults and children, including the Zeeberg family. Syfers and her group had been to this hill several times before. Lambert or Syfers purchased a "Sno-Park" parking permit upon entry to the park.
The safety rules posted at the top of the sledding hill prohibited building snow ramps and jumps on the hill.
Prior to sledding, Syfers and Lambert inspected the hill and determined that it was free of hazards. The weather was overcast, and there was little reflection off the hill.
Syfers was the first to sled down the hill. On her way down, she encountered "a mound of snow" or a "large deep hole." She did not see this hazard in time to avoid it. There were no markings, flags, or warnings indicating the presence of the bump.
When Syfers hit the bump in the snow, she was thrown off her sled. She landed directly on the snow, injuring her back.
Ranger Arnold Hampton was on duty at the time of Syfers's injury. Ranger Hampton and his wife lived in a house in the park, twenty yards from the hill. At the time Syfers was injured, Ranger Hampton was performing other duties and was not at the park. Ranger Hampton claims that he never saw or received a report about the particular bump that injured Syfers until after she sustained the injury.
Ranger Hampton monitored snow conditions and would occasionally use a shovel to address icy or bumpy conditions on the hill. He would notify the snow groomer when he determined that more intensive grooming was required. On the occasions, described as "infrequent," when Ranger Hampton would see jumps built by users of the sledding hill, he would notify the snow groomer. Ranger Hampton claims that he never personally operated the snow grooming equipment.
In the immediate aftermath of Syfers's accident, someone contacted Ms. Hampton and asked her to telephone for emergency medical assistance for Syfers. Lambert and Ms. Zeeberg both filed declarations stating that, at that time, Ms. Hampton acknowledged to them that the State knew of the bump, and that Ms. Hampton commented that snowboarders using the hill typically built jumps. The declarations also state that Ms. Hampton said that the slope was groomed each morning, but that her husband had not finished grooming the hill the day of the accident. Ms. Hampton was not a State employee.
Syfers filed a lawsuit for personal injury. Lambert filed a lawsuit for loss of consortium.
The State moved for summary judgment dismissal of these actions. The trial court granted the motion, and dismissed both actions with prejudice.
DISCUSSION I. Parking Charge
As a preliminary matter, we conclude that the State did not lose its statutory immunity when Syfers and Lambert paid a parking fee to park their motor vehicle near the sledding hill.
RCW 79A.05.225 allows the Washington State Parks and Recreation Commission charge a fee for "permits to park in designated winter recreational area parking spaces." RCW 79A.05.225(2).
RCW 79A.05.225 provides that "[t]he commission is not liable for unintentional injuries to users of lands administered for winter recreation purposes under this section." RCW 79A.05.225(4). The statute also contains an exception to non-liability for a "known dangerous artificial latent condition." RCW 79A.05.225(4).
Accordingly, under RCW 79A.05.225, Syfers's negligence claim is barred by the recreational use immunity, subject to the exception set forth in both RCW 4.24.210(4) and RCW 79A.05.225(4) for a known, dangerous, artificial, latent condition.
II. Recreational Use Immunity
This court reviews a grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322, 327 (2002). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). Ordinarily, an appellate court reviews a trial court's evidentiary rulings made in conjunction with a summary judgment motion de novo.
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). But see Am. States Ins. Co. v. Rancho San Marcos Props., L.L.C., 123 Wn. App. 205, 214, 97 P.3d 775 (2004) ("We review the trial court's ruling on evidentiary matters before it on summary judgment for abuse of discretion." (citing McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706, 782 P.2d 1045 (1989))), review denied, 154 Wn.2d 1008 (2005); Int'l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004) (court applied abuse of discretion standard of review to trial court's evidentiary rulings related to a decision on summary judgment), review denied, 153 Wn.2d 1016 (2005).
At summary judgment, to rebut a defendant's assertion of statutory immunity under RCW 4.24.210 or RCW 79A.05.225, the plaintiff bears the burden of production. Absent a prima facie showing that the condition is known, dangerous, artificial, and latent, there is no genuine issue of fact, and summary judgment for a defendant is properly granted. Cultee v. City of Tacoma, 95 Wn. App. 505, 517, 977 P.2d 15 (1999).
As written, the terms "known," "dangerous," "artificial," and "latent" modify "condition," not one another. Van Dinter v. City of Kennewick, 121 Wn.2d 38, 46, 846 P.2d 522 (1993). Under the recreational use statutes, the injury-causing condition is "the specific object or instrumentality that caused the injury, viewed in relation to other external circumstances in which the instrumentality is situated or operates." Ravenscroft v. Washington Water Power Co., 136 Wn.2d 911, 921, 969 P.2d 75 (1998).
Syfers failed to meet her burden of production with respect to the "known" element. Therefore, we affirm the trial court's grant of summary judgment.
In order to constitute a "known" condition for purposes of the recreational use statutes, the landowner must have actual, as opposed to constructive, knowledge that the specific condition exists. Gaeta v. Seattle City Light, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989); Partridge v. City of Seattle, 49 Wn. App. 211, 217, 741 P.2d 1039 (1987) (evidence allowing inference that defendant "should have known" that the injury causing condition "could be present" not sufficient). Accordingly, a plaintiff must come forward with evidentiary facts from which a trier of fact could reasonably infer that the State had actual knowledge of the specific injury-causing condition. Tabak v. State, 73 Wn. App. 691, 696, 870 P.2d 1014 (1994); Gaeta, 54 Wn. App. at 609.
For example, in Davis v. State, 102 Wn. App. 177, 6 P.3d 1191 (2000), a motorcyclist was riding on sand and was injured when he came to a large drop-off. An agent of the State testified that he was familiar with the area in which the accident occurred and knew that the terrain could include dunes with steep slopes. However, there was "no indication that he knew of this particular transitory condition." Davis, 102 Wn. App. at 191. Thus, the court found insufficient evidence of "knowledge" to defeat summary judgment. Davis, 102 Wn. App. at 191.
The result reached herein is consistent with the court's resolution of an analogous factual scenario in Ertl v. Parks Recreation Comm'n, 76 Wn. App. 110, 882 P.2d 1185 (1994), although we follow the analytical framework outlined in Van Dinter, 121 Wn.2d at 46.
In the instant case, Syfers presented evidence of: (a) alleged inconsistencies in Ranger Hampton's statements; (b) statements allegedly made by Ranger Hampton's spouse; (c) other circumstantial evidence, consisting of testimony regarding the common presence of jumps and ramps on the sledding hill, the proximity of the Hampton's house to the sledding hill; and the existence of the State's rules prohibiting jump-building on the sledding hill. None of this evidence, considered together or independently, permits a reasonable inference that the State had actual knowledge of the bump in the snow that caused Syfers to fall and injure herself.
Appellants assert that the declarations of Ranger Hampton and his wife should not have been considered by the trial court, as they were submitted with the moving party's reply materials. However, the issue of the State's knowledge was properly raised in the State's motion for summary judgment. A moving party may file rebuttal documents which explain, disprove, or contradict the adverse party's evidence. White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 168, 810 P.2d 4 (1991). This is precisely the type of evidence that the State filed in its reply.
a. Ranger Hampton's Statements
In his deposition, Ranger Hampton testified that he never inspected the sledding hill for obstructions, jumps, ramps, or mounds of snow. However, in his April 21, 2005 declaration, he claimed to have inspected the sledding hill for dangerous conditions on the day of Ms. Syfers's injury.
Syfers states that this alleged inconsistency creates a factual issue as to the "knowledge" element, citing Marshall v. ACS, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989).
However, neither statement supports Syfers's position. Even if it were true that Ranger Hampton never inspected the sledding hill for obstructions, jumps, ramps, or mounds of snow, this evidence does not allow an inference of actual knowledge of the injury-causing condition on his part, or on the part of any other State employee. On the other hand, if it were true that he inspected the sledding hill on the day Syfers was injured and did not see anything that was "dangerous," "unusual," or "hazardous in any way," this evidence refutes any inference that he had actual knowledge of the injury-causing hazard.
Accordingly, under no circumstance would the resolution of these alleged factual inconsistencies by a jury result in a factual finding beneficial to Syfers's claim.
With that stated, the Marshall rule does not apply. The statements are not necessarily contradictory. "Watching the conditions of the snow" to see if it becomes "too bumpy or icy" is not necessarily the same as inspecting the sledding hill for obstructions, jumps, ramps, or mounds of snow. For the Marshall rule to apply, the later declaration must be in flat contradiction to the previous testimony. Berry v. Crown Cork Seal Co., 103 Wn. App. 312, 322, 14 P.3d 789 (2000).
b. Statements allegedly made by Ranger Hampton's spouse
Syfers also presented the declarations of Ms. Zeeberg and Lambert, both of whom stated that Ms. Hampton spoke to them immediately following the accident and indicated that Ranger Hampton knew of the injurious condition.
The State asserts that these statements are inadmissible hearsay. We agree.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c).
Ms. Hampton, the declarant, was not a State employee, and evidence of what she knew is not relevant. What Ranger Hampton knew was relevant. However, Ms. Hampton's alleged statements, repeated by others, were only relevant to the extent that they were intended to convey the truth of Ms. Hampton's assertions concerning what Ranger Hampton knew. Thus, the statements were plainly hearsay and were properly excluded. Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842 (1986).
c. Other circumstantial evidence of knowledge
Syfers also asserts that the State's actual knowledge of the condition can be inferred from testimony regarding the common presence of jumps on the hill, by the fact that the State imposed rules prohibiting jumps on the hill, and by the fact that the State periodically groomed the hill.
However, the facts cited, at best, create an inference of constructive knowledge. But evidence of actual knowledge, not constructive knowledge, was required to defeat the motion for summary judgment dismissal. Thus, this evidence fails to satisfy Syfers's burden of production. Summary judgment dismissal of her negligence claim was therefore appropriate on this basis.
Our determination that Syfers failed to present sufficient evidence to create a reasonable inference that the State had actual knowledge of the injury-causing hazard precludes Lambert's loss of consortium claim. Therefore, we affirm the trial court's summary dismissal of his claim for loss of consortium.
Accordingly, we need not reach the State's arguments concerning the doctrine of primary implied assumption of risk and the application of the claims-filing statute to Lambert's claim.
Affirmed.
APPELWICK, and BECKER, JJ., concur.