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Nielsen v. Port of Bellingham7/30/2001
Concurring: Walter E. Webster, C. Kenneth Grosse
PUBLISHED IN PART
After the trial court refused to rule that the recreational use statute immunized the Port of Bellingham from liability for Joyce Nielsen's negligence suit, a jury awarded her damages for injuries she suffered in a fall on a float at Squalicum Harbor. The Port appeals, claiming, inter alia, that it is entitled to immunity because it allows the general public to walk on its floats for recreational purposes without charging a fee. We affirm because Nielsen, who fell on slippery algae as she left the boat of a 'live-aboard' tenant moored at the marina, was not a 'recreational user' within the meaning of the recreational use statute.
FACTS
Squalicum Harbor is a commercial marina owned and operated by the Port of Bellingham. The Port leases moorage to both commercial and pleasure-boat owners. Dr. Sheldon Wilkins entered into a lease agreement with the Port to moor his 62-foot motor yacht, the Cadenza, at Squalicum Harbor. Wilkins is a 'live-aboard' which means he pays increased moorage fees associated with his resident-status at the Harbor. The Cadenza was moored at Gate One, where four commercial fishing vessels were also moored. Because of its small size, Gate One had far less traffic than other, larger commercial and pleasure-boat moorages located at the Harbor, and received significantly less maintenance. While some of the busier floats at the Harbor are made of concrete, the float at Gate One is made of wood.
To access the Gate One moorages, users walk down a metal ramp leading from the parking lot to the wooden surface of the float. At trial, Dr. Wilkins testified that the surface of the float at the foot of the ramp was slippery, particularly in the wet autumn and winter months, due to the accumulation of algae. Wilkins, who himself had slipped on the wooden surface at the foot of the ramp in the past, attempted to clear the algae on a few occasions, by using soap, bleach, and a garden hose. Savior Papetti, who has 58 years of experience as a commercial fisherman and who has moored boats at Squalicum Harbor since 1963, had a fishing boat moored at Gate One. He testified that he had slipped and fallen on algae on the ramp. The Port's maintenance manager testified that although other floats at the facility were periodically pressure washed, the float at Gate One was not.
On the evening of November 2, 1994, Joyce Nielsen visited Dr. Wilkins aboard the Cadenza. She boarded without incident around 5:15 p.m. Steve and Linda Wilkins joined them around 6 p.m. that evening. They testified that they had slipped on the wooden surface near the foot of the ramp that evening, though neither of them fell. Shortly after Steve and Linda Wilkins arrived, Joyce Nielsen left the boat. During her visit aboard, Joyce consumed one and a half 'screwdrivers' consisting of three parts orange juice to one part vodka. As she was leaving, Steve and Linda warned her to be careful because the dock was 'really slick'. It had rained earlier in the evening, but was above freezing, and there was no ice on the float.
Nielsen proceeded up the float toward the ramp leading to the parking lot. She was wearing sturdy rubber-soled shoes. When she got to the foot of the ramp, she felt her feet go out from under her. She fell hard, landing on her right side. When she tried to get up, she realized that her right wrist was broken. With considerable difficulty, she was able to get up the ramp and to a pay phone, where she called for assistance. After filing a timely claim with the Port as required by RCW 4.96.020, Nielsen brought this lawsuit claiming that the Port negligently maintained the float
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