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Nielsen v. Port of Bellingham7/30/2001
at Gate One, proximately causing her fall and injuries.
The Port sought dismissal of Nielsen's lawsuit by summary judgment, claiming, inter alia, that it was immune from liability under Ch. 4.24 RCW, the recreational use statute, because '{v}isitors are permitted to walk on the floats and docks, enjoy the view, and look at the boats' without paying any fee for the privilege. Brief of App. at 2. The court denied the Port's motion and the case proceeded to trial, where the court instructed the jury that the Port owed Joyce Nielsen the standard of ordinary care owed to a business invitee.
After the jury entered a plaintiff's verdict, the Port timely filed a motion for new trial, for judgment notwithstanding the verdict, and for reduction of the damages award. The court denied this motion, and this appeal followed.
DISCUSSION
The Port argues that the trial court erred when it denied the Port's pre-and post-trial motions, contending that it is immune from Nielsen's suit because it allows members of the public to use its floats and docks for recreational purposes without charging a fee of any kind to such users. The trial court did not err. Nielsen was not a recreational user within the meaning of the recreational use statute at the time of her injury; she was an invitee of Dr. Wilkins, a paying moorage customer.
The relevant portion of RCW 4.24.210(1) states:
{A}ny public or private landowners . . . of . . . water areas or channels and lands adjacent to such areas or channels, 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. (Italics ours.)
By the plain language of the statute, the grant of immunity covers unintentional injuries to members of the public who are using the property for the purposes of outdoor recreation. As statutes such as RCW 4.24.210(1) are in derogation of common law rules of liability of landowners, they are to be strictly construed. Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 824 P.2d 541 (1992) (outdoor recreation does not include festivals). The purpose of the statutory grant of immunity is to encourage property owners to open up their properties for public recreational use. See RCW 4.24.200.
The Port points to this court's decision in Gaeta v. Seattle City Light, 54 Wn. App. 603, 774 P.2d 1255 (1989) wherein we said:
We find the proper approach in deciding whether or not the recreational use act applies is to view it from the standpoint of the landowner or occupier. If he has brought himself within the terms of the statute, then it is not significant that a person coming onto the property may have some commercial purpose in mind. By opening up the lands for recreational use without a fee, City Light has brought itself under the protection of the immunity statute, and it therefore is immaterial that Gaeta may have driven across the dam in search of gasoline at the resort. Id. at 608-09.
The Port argues that from its standpoint, it has opened up its docks for recreational use without a fee to all those who want to walk on the floats to look at boats and look out over the water, therefore, it has brought itself under the protection of the immunity statute and it is immaterial that Nielsen came to the dock for the purpose of visiting a 'live-aboard' who pays moorage fees..
Our statement in Gaeta quoted above must be read in the context of the facts of that case. There, the plaintiff was on a cross-country scenic motorcycle tour, and his bike needed gasoline. Thus, he turned off the high
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